EXHIBIT 4.15
$105,000,000
ALTRA INDUSTRIAL MOTION, INC.
9% SENIOR SECURED NOTES DUE 2011
REGISTRATION RIGHTS AGREEMENT
April 5, 2007
JEFFERIES & COMPANY, INC.
520 Madison Avenue, 12th Floor
New York, NY 10022
Ladies and Gentlemen:
ALTRA INDUSTRIAL MOTION, INC., a Delaware corporation (the "Company"), is
issuing and selling to Jefferies & Company, Inc. (the "Initial Purchaser"), upon
the terms set forth in the Purchase Agreement dated April 3, 2007, by and among
the Company, the Initial Purchaser and the subsidiary guarantors named therein
(the "Purchase Agreement"), $105,000,000 aggregate principal amount of 9% Senior
Secured Notes due 2011 issued by the Company (the "Notes") pursuant to the
Indenture (as defined below) which the Company previously issued $165,000,000
aggregate principal amount of 9% senior secured notes due 2011. As an inducement
to the Initial Purchaser to enter into the Purchase Agreement, the Company and
the subsidiary guarantors listed in the signature pages hereto agree with the
Initial Purchaser, for the benefit of the Holders (as defined below) of the
Notes (including, without limitation, the Initial Purchaser), as follows:
1. DEFINITIONS
Capitalized terms that are used herein without definition and are defined
in the Purchase Agreement shall have the respective meanings ascribed to them in
the Purchase Agreement. As used in this Agreement, the following terms shall
have the following meanings:
ADDITIONAL INTEREST: See Section 4(a).
ADVICE: See Section 6(w).
AGREEMENT: This Registration Rights Agreement, dated as of the Closing
Date, between the Company and the Initial Purchaser.
APPLICABLE PERIOD: See Section 2(e).
BOARD: See Section 11(n).
BLACKOUT PERIODS: See Section 11(n).
BUSINESS DAY: A day that is not a Saturday, a Sunday or a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to be closed.
CLOSING DATE: April 5, 2007.
COLLATERAL AGREEMENTS: Shall have the meaning set forth in the Indenture.
COMPANY: See the introductory paragraph to this Agreement.
EFFECTIVENESS DATE: The 210th day after the Closing Date.
EFFECTIVENESS PERIOD: See Section 3(a).
EVENT DATE: See Section 4(b).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
EXCHANGE NOTES: 9% Senior Secured Notes due 2011 of the Company, identical
in all material respects to the Notes, including the guarantees endorsed
thereon, except for references to series and restrictive legends and references
to this Agreement.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
FILING DATE: The 45th day after the Closing Date.
HOLDER: Any registered holder of Registrable Notes.
INDEMNIFIED PARTY: See Section 8(c).
INDEMNIFYING PARTY: See Section 8(c).
INDENTURE: The Indenture, dated as of November 30, 2004, among the Company,
the Subsidiary Guarantors and The Bank of New York Trust Company, N.A., as
trustee, pursuant to which the Notes are being issued, as supplemented by the
First Supplemental Indenture dated February 7, 2006, among the Company, the
Subsidiary Guarantors and The Bank of New York Trust Company, N.A., as trustee,
and as further supplemented by the Second Supplemental Indenture dated February
8, 2006, among the Company, the Subsidiary Guarantors and The Bank of New York
Trust Company, N.A., as trustee, and as further supplemented by the Third
Supplemental Indenture dated April 24, 2006, among the Company, the Subsidiary
Guarantors and The Bank of New York Trust Company, N.A., as trustee, and as
further supplemented by the Fourth Supplemental Indenture dated March 21, 2007,
among the Company, the Subsidiary Guarantors and The Bank of New York Trust
Company, N.A., as trustee, and as further supplemented by the Fifth Supplemental
Indenture dated as of the Closing Date, among the
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Company, the Subsidiary Guarantors and The Bank of New York Trust Company, N.A.,
as trustee, and as further supplemented from time to time in accordance with the
terms hereof.
INITIAL PURCHASER: See the introductory paragraph to this Agreement.
INITIAL SHELF REGISTRATION: See Section 3(a).
INSPECTORS: See Section 6(o).
LIEN: Shall have the meaning set forth in the Indenture.
LOSSES: See Section 8(a).
MAXIMUM CONTRIBUTION AMOUNT: See Section 8(d).
NASD: National Association of Securities Dealers, Inc.
NOTES: See the introductory paragraph to this Agreement.
PARTICIPATING BROKER-DEALER: See Section 2(e).
PERSON: An individual, trustee, corporation, partnership, limited liability
company, joint stock company, trust, unincorporated association, union, business
association, firm, government or agency or political subdivision thereof, or
other legal entity.
PRIVATE EXCHANGE: See Section 2(f).
PRIVATE EXCHANGE NOTES: See Section 2(f).
PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Notes covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: See the introductory paragraph to this Agreement.
RECORDS: See Section 6(o).
REGISTRABLE NOTES: (i) Notes, (ii) Private Exchange Notes and (iii)
Exchange Notes received in the Exchange Offer, in each case, that may not be
sold without restriction under federal or state securities laws.
REGISTRATION STATEMENT: Any registration statement of the Company and the
Subsidiary Guarantors filed with the SEC under the Securities Act (including,
but not limited to, the Exchange Registration Statement, the Shelf Registration
and any subsequent Shelf Registration)
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that covers any of the Registrable Notes pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
RULE 144: Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer or such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
RULE 415: Rule 415 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
RULE 430A: Rule 430A promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES: The Notes, the Exchange Notes and the Private Exchange Notes.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
SHELF NOTICE: See Section 2(j).
SHELF REGISTRATION: See Section 3(b).
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
SUBSIDIARY GUARANTOR: Each subsidiary of the Company that guarantees the
obligations of the Company under the Notes and the Indenture.
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if applicable, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in which
securities of the Company are sold to an underwriter for reoffering to the
public.
2. EXCHANGE OFFER
(a) Unless the Exchange Offer would not be permitted by applicable laws or
a policy of the SEC, the Company shall (and shall cause each
Subsidiary Guarantor to) (i)
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use commercially reasonable efforts to prepare and file with the SEC
promptly after the date hereof and by the Filing Date, a registration
statement (the "Exchange Registration Statement") on an appropriate
form under the Securities Act with respect to an offer (the "Exchange
Offer") to the Holders of Notes to issue and deliver to such Holders,
in exchange for the Notes, a like principal amount of Exchange Notes,
(ii) use commercially reasonable efforts to cause the Exchange
Registration Statement to become effective as promptly as practicable
after the filing thereof and on or before the Effectiveness Date,
(iii) use its best efforts to keep the Exchange Registration Statement
effective until the consummation of the Exchange Offer in accordance
with its terms, and (iv) commence the Exchange Offer and use its best
efforts to issue, on or prior to 30 Business Days after the date on
which the Exchange Registration Statement is declared effective,
Exchange Notes in exchange for all Notes tendered prior thereto in the
Exchange Offer. The Exchange Offer shall not be subject to any
conditions, other than that the Exchange Offer does not violate
applicable law or any applicable interpretation of the staff of the
SEC.
(b) The Exchange Notes shall be issued under, and entitled to the benefits
of, (i) the Indenture or a trust indenture that is identical to the
Indenture (other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualifications
thereof under the TIA) and (ii) the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue
(i) from the later of (A) the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor, or
(B) if the Notes are surrendered for exchange on a date in a period
which includes the record date for an interest payment date to occur
on or after the date of such exchange and as to which interest was
paid, the date of such interest payment date; or (ii) if no interest
has been paid on the Notes, from the Closing Date. Each Exchange Note
and Private Exchange Note shall bear interest at the rate set forth
thereon; provided, that interest with respect to the -------- period
prior to the issuance thereof shall accrue at the rate or rates borne
by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in
the Exchange Offer to represent (i) that any Exchange Notes received
by it will be acquired in the ordinary course of its business, (ii)
that at the time of the commencement and consummation of the Exchange
Offer such Holder has not entered into any arrangement or
understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes in
violation of the provisions of the Securities Act, (iii) that if such
Holder is an "affiliate" of the Company within the meaning of Rule 405
of the Securities Act, it will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent
applicable to it, (iv) if such Holder is not a broker-dealer, that it
is not engaged in, and does not intend to engage in, the distribution
of the Notes and (v) if such Holder is a Participating Broker-Dealer
(as defined
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below), that it will deliver a Prospectus in connection with any
resale of the Exchange Notes.
(e) The Company shall (and shall cause each Subsidiary Guarantor to)
include within the Prospectus contained in the Exchange Registration
Statement a section entitled "Plan of Distribution" reasonably
acceptable to the Initial Purchaser which shall contain a summary
statement of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer for its own account in exchange
for Notes that were acquired by it as a result of market-making or
other trading activity (a "Participating Broker-Dealer"), whether such
positions or policies have been publicly disseminated by the staff of
the SEC or such positions or policies, in the judgment of the Initial
Purchaser, represent the prevailing views of the staff of the SEC.
Such "Plan of Distribution" section shall also allow, to the extent
permitted by applicable policies and regulations of the SEC, the use
of the Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including, to the extent so
permitted, all Participating Broker-Dealers, and include a statement
describing the manner in which Participating Broker-Dealers may resell
the Exchange Notes. The Company shall use its best efforts to keep the
Exchange Registration Statement effective and to amend and supplement
the Prospectus contained therein, in order to permit such Prospectus
to be lawfully delivered by all Persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as
such Persons must comply with such requirements in order to resell the
Exchange Notes; provided that such period shall not exceed the lesser
of 180 days and the date on which all persons subject to the
prospectus delivery requirements of the Securities Act have sold all
Exchange Notes held by them (the "Applicable Period").
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser
hold any Notes acquired by them and having the status of an unsold
allotment in the initial distribution, the Company (upon the written
request from the Initial Purchaser) shall, simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and
deliver to the Initial Purchaser, in exchange (the "Private Exchange")
for the Notes held by the Initial Purchaser, a like principal amount
of Notes that are identical to the Exchange Notes except for the
existence of restrictions on transfer thereof under the Securities Act
and securities laws of the several states of the United States (the
"Private Exchange Notes") (and which are issued pursuant to the same
indenture as the Exchange Notes). The Private Exchange Notes shall
bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall
cause each Subsidiary Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Registration Statement, together with an appropriate
letter of transmittal
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that is an exhibit to the Exchange Registration Statement, and
any related documents;
(ii) keep the Exchange Offer open for not less than 20 Business Days
after the date notice thereof is mailed to the Holders (or longer
if required by applicable law);
(iii) utilize the services of a depository for the Exchange Offer with
an address in the Borough of Manhattan, the City of New York,
which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time
prior to the close of business, New York time, on the last
Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable
laws.
(h) As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall (and shall
cause each Subsidiary Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered
pursuant to the Exchange Offer or the Private Exchange, as the
case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so
accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder tendering such Registrable Notes, Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal
amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued under
(i) the Indenture or (ii) an indenture identical to the Indenture
(other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification
thereof under the TIA), which in either event will provide that the
Exchange Notes will not be subject to the transfer restrictions set
forth in the Indenture, that the Private Exchange Notes will be
subject to the transfer restrictions set forth in the Indenture, and
that the Exchange Notes, the Private Exchange Notes and the Notes, if
any, will be deemed one class of security (subject to the provisions
of the Indenture) and entitled to participate in all the security
granted by the Company pursuant to the Collateral Agreements and in
any Subsidiary Guarantee (as such terms are defined in the Indenture)
on an equal and ratable basis.
(j) If: (i) prior to the consummation of the Exchange Offer, the Holders
of a majority in aggregate principal amount of Registrable Notes
determines in its or their
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reasonable judgment that (A) the Exchange Notes would not, upon
receipt, be tradeable by the Holders thereof without restriction under
the Securities Act and the Exchange Act and without material
restrictions under applicable Blue Sky or state securities laws, or
(B) the interests of the Holders under this Agreement, taken as a
whole, would be materially adversely affected by the consummation of
the Exchange Offer; (ii) applicable interpretations of the staff of
the SEC would not permit the consummation of the Exchange Offer prior
to the Effectiveness Date; (iii) subsequent to the consummation of the
Private Exchange, any Holder of Private Exchange Notes so requests;
(iv) the Exchange Offer is not consummated within 30 Business Days
from the date the Exchange Registration Statement was declared
effective; or (v) in the case of (A) any Holder not permitted by
applicable law or SEC policy to participate in the Exchange Offer, (B)
any Holder participating in the Exchange Offer that receives Exchange
Notes that may not be sold without restriction under state and federal
securities laws (other than due solely to the status of such Holder as
an affiliate of the Company within the meaning of the Securities Act)
or (C) any broker-dealer that holds Notes acquired directly from the
Company or any of its affiliates and, in each such case contemplated
by this clause (v), such Holder notifies the Company within six months
of consummation of the Exchange Offer, then the Company shall promptly
(and in any event within five Business Days) deliver to the Holders
(or in the case of an occurrence of any event described in clause (v)
of this Section 2(j), to any such Holder) and the Trustee notice
thereof (the "Shelf Notice") and shall as promptly as possible
thereafter (but in no event more than 45 days after delivery of the
Shelf Notice) file an Initial Shelf Registration pursuant to Section
3.
3. SHELF REGISTRATION
If a Shelf Notice is delivered pursuant to Section 2(j), then this Section
3 shall apply to all Registrable Notes. Otherwise, upon consummation of the
Exchange Offer in accordance with Section 2, the provisions of Section 3 shall
apply solely with respect to (i) Notes held by any Holder thereof not permitted
to participate in the Exchange Offer, (ii) Notes held by any broker-dealer that
acquired such Notes directly from the Company or any of its affiliates and (iii)
Exchange Notes that are not freely tradeable as contemplated by Section 2(j)(v)
hereof, provided in each case that the relevant Holder has duly notified the
Company within six months of the Exchange Offer as required by Section 2(j)(v).
(a) Initial Shelf Registration. The Company shall (and shall cause each
Subsidiary Guarantor to), as promptly as practicable, file with the
SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable
Notes (the "Initial Shelf Registration"). If the Company (and any
Subsidiary Guarantor) has not yet filed an Exchange Registration
Statement, the Company shall (and shall cause each Subsidiary
Guarantor to) file with the SEC the Initial Shelf Registration on or
prior to the Filing Date and shall use its best efforts to cause such
Initial Shelf Registration to be declared effective under the
Securities Act on or prior to the Effectiveness Date. Otherwise, the
Company shall (and shall cause each Subsidiary Guarantor
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to) use its best efforts to file with the SEC the Initial Shelf
Registration within 30 days of the delivery of the Shelf Notice and
shall use its best efforts to cause such Shelf Registration to be
declared effective under the Securities Act as promptly as practicable
thereafter (but in no event more than 45 days after delivery of the
Shelf Notice). The Initial Shelf Registration shall be on Form S-1 or
another appropriate form permitting registration of such Registrable
Notes for resale by Holders in the manner or manners reasonably
designated by them (including, without limitation, one or more
underwritten offerings). The Company and Subsidiary Guarantors shall
not permit any securities other than the Registrable Notes to be
included in any Shelf Registration. The Company shall (and shall cause
each Subsidiary Guarantor to) use its best efforts to keep the Initial
Shelf Registration continuously effective under the Securities Act
until the date which is 24 months from the Closing Date (subject to
extension pursuant to the last sentence of Section 6(w) (the
"Effectiveness Period"), or such shorter period ending when (i) all
Registrable Notes covered by the Initial Shelf Registration have been
sold in the manner set forth and as contemplated in the Initial Shelf
Registration, (ii) a Subsequent Shelf Registration covering all of the
Registrable Notes covered by and not sold under the Initial Shelf
Registration or an earlier Subsequent Shelf Registration has been
declared effective under the Securities Act or (iii) there cease to be
any outstanding Registrable Notes.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration or
any Subsequent Shelf Registration (as defined below) ceases to be
effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the securities registered
thereunder), the Company shall (and shall cause each Subsidiary
Guarantor to) use its best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof, and in any event shall
within 30 days of such cessation of effectiveness amend such Shelf
Registration in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file (and cause each
Subsidiary Guarantor to file) an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the Registrable Notes
(a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company shall (and shall cause each
Subsidiary Guarantor to) use its best efforts to cause the Subsequent
Shelf Registration to be declared effective as soon as practicable
after such filing and to keep such Subsequent Shelf Registration
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which
the Initial Shelf Registration or any Subsequent Shelf Registration
was previously continuously effective. As used herein the term "Shelf
Registration" means the Initial Shelf Registration and any Subsequent
Shelf Registrations
(c) Supplements and Amendments. The Company shall promptly supplement and
amend any Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration or if required by the Securities Act.
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(d) Provision of Information. No Holder of Registrable Notes shall be
entitled to include any of its Registrable Notes in any Shelf
Registration pursuant to this Agreement unless such Holder furnishes
to the Company and the Trustee in writing, within 20 days after
receipt of a written request therefor, such information as the Company
and the Trustee after conferring with counsel with regard to
information relating to Holders that would be required by the SEC to
be included in such Shelf Registration or Prospectus included therein,
may reasonably request for inclusion in any Shelf Registration or
Prospectus included therein, and no such Holder shall be entitled to
Additional Interest pursuant to Section 4 hereof unless and until such
Holder shall have provided such information.
4. ADDITIONAL INTEREST
(a) The Company and each Subsidiary Guarantor acknowledges and agrees that
the Holders of Registrable Notes will suffer damages if the Company or
any Subsidiary Guarantor fails to fulfill its material obligations
under Section 2 or Section 3 hereof and that it would not be feasible
to ascertain the extent of such damages with precision. Accordingly,
the Company and the Subsidiary Guarantors agree to pay additional cash
interest on the Notes ("Additional Interest") under the circumstances
and to the extent set forth below (each of which shall be given
independent effect):
(i) if (A) neither the Exchange Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the
Filing Date or (B) notwithstanding that the Exchange Offer has or
will be consummated, the Company is required to file a Shelf
Registration Statement and such Shelf Registration Statement in
not filed on or prior to the date required under Section 3 of
this Registration Rights Agreement, then Additional Interest
shall accrue on the Notes over and above any stated interest at a
rate of 0.25% per annum of the principal amount of such Notes for
the first 90 days immediately following the Filing Date, such
Additional Interest rate increasing by an additional 0.25% per
annum at the beginning of each subsequent 90-day period;
(ii) if (A) neither the Exchange Registration Statement nor the
Initial Shelf Registration is declared effective on or prior to
the Effectiveness Date or (B) notwithstanding that the Exchange
Offer has or will be consummated, the Company is required to file
a Shelf Registration Statement and such Shelf Registration
Statement is not declared effective by the SEC on or prior to the
90th day following the date such Shelf Registration Statement was
filed, then, commencing on the day after either such required
effective date, Additional Interest shall accrue on the Notes
over and above any stated interest at a rate of 0.25% per annum
of the principal amount of such Notes for the first 90 days
immediately following the Effectiveness Date, such Additional
Interest rate increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period;
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(iii) if (A) the Company (and any Subsidiary Guarantor) has not
exchanged Exchange Notes for all Notes validly tendered in
accordance with the terms of the Exchange Offer on or prior to
the 30th Business Day after the Effectiveness Date or (B) if
applicable, a Shelf Registration has been declared effective and
such Shelf Registration ceases to be effective at any time prior
to the second anniversary of the Closing Date (other than such
time as all Notes have been disposed of thereunder) and is not
declared effective again within 30 days, then Additional Interest
shall accrue on the Notes, over and above any stated interest, at
a rate of 0.25% per annum of the principal amount of such Notes
for the first 90 days commencing on (x) the 31st Business Day
after the Effectiveness Date, in the case of (A) above, or (y)
the day such Shelf Registration ceases to be effective in the
case of (B) above, such Additional Interest rate increasing by an
additional 0.25% per annum at the beginning of each such
subsequent 90-day period;
provided, however, that Additional Interest will not accrue under more
than one of the foregoing clauses (i), (ii) or (iii) at any one time;
provided further, that the maximum Additional Interest rate on the
Notes may not exceed at any one time in the aggregate 1.00% per annum;
and provided further, that (1) upon the filing of the Exchange
Registration Statement or Initial Shelf Registration (in the case of
(i) above), (2) upon the effectiveness of the Exchange Registration
Statement or Initial Shelf Registration (in the case of (ii) above),
or (3) upon the exchange of Exchange Notes for all Notes tendered (in
the case of (iii)(A) above), or upon the effectiveness of a Shelf
Registration which had ceased to remain effective (in the case of
(iii)(B) above), Additional Interest on the Notes as a result of such
clause (or the relevant subclause thereof), as the case may be, shall
cease to accrue.
(b) The Company shall notify the Trustee within three Business Days after
each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any
amounts of Additional Interest due pursuant to clause (a)(i), (a)(ii)
or (a)(iii) of this Section 4 will be payable in cash, on the dates
and in the manner provided in the Indenture and whether or not any
cash interest would then be payable on such date, commencing with the
first such semi-annual date occurring after any such Additional
Interest commences to accrue. The amount of Additional Interest will
be determined by multiplying the applicable Additional Interest rate
by the principal amount of the Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate
was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed), and the denominator
of which is 360.
5. HOLD-BACK AGREEMENTS
The Company agrees that it will not effect any public or private sale or
distribution (including a sale pursuant to Regulation D under the Securities
Act) of any securities the same as or similar to those covered by a Registration
Statement filed pursuant to Section 2 or 3 hereof
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(other than Additional Notes (as defined in the Indenture) issued under the
Indenture), or any securities convertible into or exchangeable or exercisable
for such securities, during the 10 days prior to, and during the 90-day period
beginning on, the effective date of any Registration Statement filed pursuant to
Sections 2 and 3 hereof unless the Holders of a majority of the aggregate
principal amount of the Registrable Notes to be included in such Registration
Statement consent, if the managing underwriter thereof (if any) so requests in
writing.
6. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Company shall (and shall cause each Subsidiary
Guarantor to) effect such registrations to permit the sale of such securities
covered thereby in accordance with the intended method or methods of disposition
thereof, and pursuant thereto and in connection with any Registration Statement
filed by the Company hereunder, the Company shall (and shall cause each
Subsidiary Guarantor to):
(a) Prepare and file with the SEC as soon as practicable after the date
hereof but in any event on or prior to the Filing Date, the Exchange
Registration Statement or if the Exchange Registration Statement is
not filed because of the circumstances contemplated by Section 2(j), a
Shelf Registration as prescribed by Section 3, and use its
commercially reasonable efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
provided that, if (1) a Shelf Registration is filed pursuant to
Section 3 or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period relating thereto,
before filing any Registration Statement or Prospectus or any
amendments or supplements thereto the Company shall (and shall cause
each Subsidiary Guarantor to), if requested, furnish to and afford the
Holders of the Registrable Notes to be registered pursuant to such
Shelf Registration Statement, each Participating Broker-Dealer, the
managing underwriters, if any, and each of their respective counsel, a
reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in each case
at least five Business Days prior to such filing). The Company and
each Subsidiary Guarantor shall not file any such Registration
Statement or Prospectus or any amendments or supplements thereto in
respect of which the Holders must provide information for the
inclusion therein without the Holders being afforded an opportunity to
review such documentation if the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration
Statement, or any such Participating Broker-Dealer, as the case may
be, the managing underwriters, if any, or any of their respective
counsel shall reasonably object in writing on a timely basis. A Holder
shall be deemed to have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains an untrue statement of a
material fact or omits to state any material fact necessary to make
the statements therein not
12
misleading or fails to comply with the applicable requirements of the
Securities Act.
(b) Provide an indenture trustee for the Registrable Notes, the Exchange
Notes or the Private Exchange Notes, as the case may be, and cause the
Indenture (or other indenture relating to the Registrable Notes) to be
qualified under the TIA not later than the effective date of the first
Registration Statement; and in connection therewith, to effect such
changes to such indenture as may be required for such indenture to be
so qualified in accordance with the terms of the TIA; and execute, and
use its best efforts to cause such trustee to execute, all documents
as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such indenture
to be so qualified in a timely manner.
(c) Prepare and file with the SEC such pre-effective amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be;
cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions
of the Securities Act and the Exchange Act applicable to them with
respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by any
such Prospectus. The Company and each Subsidiary Guarantor shall not,
during the Applicable Period, voluntarily take any action that would
result in selling Holders of the Registrable Notes covered by a
Registration Statement or Participating Broker-Dealers seeking to sell
Exchange Notes not being able to sell such Registrable Notes or such
Exchange Notes during that period, unless such action is required by
applicable law, rule or regulation or permitted by this Agreement.
(d) Furnish to such selling Holders and Participating Broker-Dealers who
so request in writing (i) upon the Company's receipt, a copy of the
order of the SEC declaring such Registration Statement and any post
effective amendment thereto effective, (ii) such reasonable number of
copies of such Registration Statement and of each amendment and
supplement thereto (in each case including any documents incorporated
therein by reference and all exhibits), (iii) such reasonable number
of copies of the Prospectus included in such Registration Statement
(including each preliminary Prospectus) and each amendment and
supplement thereto, and such reasonable number of copies of the final
Prospectus as filed by the Company and each Subsidiary Guarantor
pursuant to Rule 424(b) under the Securities Act, in conformity with
the requirements of the Securities Act and each amendment and
supplement thereto, and (iv) such other documents (including any
amendments required to be filed pursuant to clause (c) of this
Section), as any such Person may reasonably request in writing. The
Company and the Subsidiary Guarantors hereby consent to the use of the
Prospectus by each
13
of the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if
any, and dealers, if any, in connection with the offering and sale of
the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and
any amendment or supplement thereto.
(e) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto, the Company shall
notify in writing the selling Holders of Registrable Notes, or each
such Participating Broker-Dealer, as the case may be, the managing
underwriters, if any, and each of their respective counsel promptly
(but in any event within two Business Days) (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been filed,
and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective (including in such
notice a written statement that any Holder may, upon request, obtain,
without charge, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and
exhibits), (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of any Prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time
when a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes the representations and
warranties of the Company and any Subsidiary Guarantor contained in
any agreement (including any underwriting agreement) contemplated by
Section 6(n) hereof cease to be true and correct, (iv) of the receipt
by the Company or any Subsidiary Guarantor of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable
Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose, (v) of the
happening of any event, the existence of any condition or any
information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in,
or amendments or supplements to, such Registration Statement,
Prospectus or documents so that, in the case of the Registration
Statement and the Prospectus, it 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, in light
of the circumstances under which they were made, not misleading, (vi)
of any reasonable determination by the Company or any Subsidiary
Guarantor that a post-effective amendment to a Registration Statement
would be appropriate and (vii) of any request by the SEC for
amendments to the Registration Statement or supplements to the
Prospectus or for additional information relating thereto.
14
(f) Use its best efforts to prevent the issuance of any order suspending
the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if any
such order is issued, to use its best efforts to obtain the withdrawal
of any such order at the earliest possible date.
(g) If (A) a Shelf Registration is filed pursuant to Section 3, (B) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period or (C) reasonably requested in
writing by the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Registrable Notes being
sold in connection with an underwritten offering, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment
such information or revisions to information therein relating to such
underwriters or selling Holders as the managing underwriters, if any,
or such Holders or any of their respective counsel reasonably request
in writing to be included or made therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notification of
the matters to be incorporated in such Prospectus supplements or
post-effective amendment.
(h) Prior to any public offering of Registrable Notes or any delivery of a
Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, use its best efforts to register or qualify,
and to cooperate with the selling Holders of Registrable Notes or each
such Participating Broker-Dealer, as the case may be, the
underwriters, if any, and their respective counsel in connection with
the registration or qualification (or exemption from such registration
or qualification) of such Registrable Notes or Exchange Notes, as the
case may be, for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer or any managing underwriter or
underwriters, if any, reasonably request in writing; provided that
where Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered other than through an underwritten
offering, the Company and each Subsidiary Guarantor agree to cause its
counsel to perform Blue Sky investigations and file any registrations
and qualifications required to be filed pursuant to this Section 6(h),
keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to
be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions
of the Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement;
provided that neither the Company nor any Subsidiary Guarantor shall
be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any
15
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to
taxation in any such jurisdiction where it is not then so subject.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or (B) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is requested to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, cooperate with the
selling Holders of Registrable Notes and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold,
which certificates shall not bear any restrictive legends and shall be
in a form eligible for deposit with The Depository Trust Company, and
enable such Registrable Notes to be in such denominations and
registered in such names as the managing underwriter or underwriters,
if any, or Holders may reasonably request.
(j) Use its commercially reasonable efforts to cause the Registrable Notes
covered by any Registration Statement to be registered with or
approved by such governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter,
if any, to consummate the disposition of such Registrable Notes,
except as may be required solely as a consequence of the nature of
such selling Holder's business, in which case the Company shall (and
shall cause each Subsidiary Guarantor to) cooperate in all reasonable
respects with the filing of such Registration Statement and the
granting of such approvals; provided that neither the Company nor any
existing Subsidiary Guarantor shall be required to (A) qualify
generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general
service of process in any jurisdiction where it is not then so subject
or (C) subject itself to taxation in any such jurisdiction where it is
not then so subject.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 6(e)(2)(v) or 6(e)(2)(vi) hereof, as
promptly as practicable, prepare and file with the SEC, at the expense
of the Company and the Subsidiary Guarantors, a supplement or
post-effective amendment to the Registration Statement or a supplement
to the related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Notes being sold thereunder or to the purchasers of the Exchange Notes
to whom such Prospectus will be delivered by a Participating
Broker-Dealer, such Prospectus will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and, if SEC
review is required, use its best
16
efforts to cause such post-effective amendment to be declared
effective as soon as possible.
(l) Use its best efforts to cause the Registrable Notes covered by a
Registration Statement to be rated with such appropriate rating
agencies, if so requested in writing by the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Registration Statement or the managing underwriter or underwriters, if
any.
(m) Prior to the initial issuance of the Exchange Notes, (i) provide the
Trustee with one or more certificates for the Registrable Notes in a
form eligible for deposit with The Depository Trust Company and (ii)
provide a CUSIP number for the Exchange Notes.
(n) If a Shelf Registration is filed pursuant to Section 3, and the
Registrable Notes are being offered in an Underwritten Offering, enter
into such agreements (including an underwriting agreement in form,
scope and substance as is customary in underwritten offerings of debt
securities similar to the Notes, as may be appropriate in the
circumstances) and take all such other actions in connection therewith
(including those reasonably requested in writing by the managing
underwriters, if any, or the Holders of a majority in aggregate
principal amount of the Registrable Notes being sold) in order to
expedite or facilitate the registration or the disposition of such
Registrable Notes, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, (i) make such
representations and warranties to the Holders and the underwriters, if
any, with respect to the business of the Company and its subsidiaries
as then conducted, and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings
of debt securities similar to the Notes, as may be appropriate in the
circumstances, and confirm the same if and when reasonably required;
(ii) obtain an opinion of counsel to the Company and the Subsidiary
Guarantors and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the Holders of a majority in aggregate
principal amount of the Registrable Notes being sold), addressed to
each selling Holder and each of the underwriters, if any, covering the
matters customarily covered in opinions of counsel to the Company and
the Subsidiary Guarantors requested in underwritten offerings of debt
securities similar to the Notes, as may be appropriate in the
circumstances; (iii) obtain "cold comfort" letters and updates thereof
(which letters and updates (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters) from the
independent certified public accountants of the Company and the
Subsidiary Guarantors (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the
Registration Statement), addressed to each of the underwriters, such
letters to be
17
in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings of
debt securities similar to the Notes, as may be appropriate in the
circumstances, and such other matters as reasonably requested in
writing by the underwriters; and (iv) deliver such documents and
certificates as may be reasonably requested in writing by the Holders
of a majority in aggregate principal amount of the Registrable Notes
being sold and the managing underwriters, if any, to evidence the
continued validity of the representations and warranties of the
Company and its subsidiaries made pursuant to clause (i) above and to
evidence compliance with any conditions contained in the underwriting
agreement or other similar agreement entered into by the Company or
any Subsidiary Guarantor.
(o) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, make available for inspection by
any selling Holder of such Registrable Notes being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any,
and any attorney, accountant or other agent retained by any such
selling Holder or each such Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours, all
financial and other records and pertinent corporate documents of the
Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all
information reasonably requested in writing by any such Inspector in
connection with such Registration Statement. Each Inspector shall
agree in writing that it will keep the Records confidential and not
disclose any of the Records unless (i) the disclosure of such Records
is necessary to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) the information in such Records is public or has
been made generally available to the public other than as a result of
a disclosure or failure to safeguard by such Inspector or (iv)
disclosure of such information is, in the reasonable written opinion
of counsel for any Inspector, necessary or advisable in connection
with any action, claim, suit or proceeding, directly or indirectly,
involving or potentially involving such Inspector and arising out of,
based upon, related to, or involving this Agreement, or any
transaction contemplated hereby or arising hereunder. Each selling
Holder of such Registrable Notes and each such Participating
Broker-Dealer will be required to agree that information obtained by
it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in
the securities of the Company unless and until such is made generally
available to the public. Each Inspector, each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer will be
required to further agree that it will, upon learning that disclosure
of such Records is sought
18
in a court of competent jurisdiction, give notice to the Company and,
to the extent practicable, use its best efforts to allow the Company,
at its expense, to undertake appropriate action to prevent disclosure
of the Records deemed confidential at its expense.
(p) Comply with all applicable rules and regulations of the SEC and make
generally available to the security holders of the Company with regard
to any applicable Registration Statement earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which Registrable
Notes are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of
the Company after the effective date of a Registration Statement,
which statements shall cover said 12-month periods.
(q) Upon consummation of an Exchange Offer or Private Exchange, obtain an
opinion of counsel to the Company and the Subsidiary Guarantors (in
form, scope and substance reasonably satisfactory to the Initial
Purchaser), addressed to the Trustee for the benefit of all Holders
participating in the Exchange Offer or Private Exchange, as the case
may be, to the effect that (i) the Company and the Subsidiary
Guarantors have duly authorized, executed and delivered the Exchange
Notes or the Private Exchange Notes, as the case may be, and the
Indenture, (ii) the Exchange Notes or the Private Exchange Notes, as
the case may be, and the Indenture constitute legal, valid and binding
obligations of the Company and the Subsidiary Guarantors, enforceable
against the Company and the Subsidiary Guarantors in accordance with
their respective terms, except as such enforcement may be subject to
customary United States and foreign exceptions and (iii) all
obligations of the Company and the Subsidiary Guarantors under the
Exchange Notes or the Private Exchange Notes, as the case may be, and
the Indenture are secured by Liens on the assets securing the
obligations of the Company and the Subsidiary Guarantors under the
Notes, Indenture and Collateral Agreements to the extent and as
discussed in the Registration Statement.
(r) If the Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Registrable Notes by the Holders to the Company and
the Subsidiary Guarantors (or to such other Person as directed by the
Company and the Subsidiary Guarantors) in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be, the Company
and the Subsidiary Guarantors shall mark, or caused to be marked, on
such Registrable Notes that the Exchange Notes or the Private Exchange
Notes, as the case may be, are being issued as substitute evidence of
the indebtedness originally evidenced by the Registrable Notes;
provided that in no event shall such Registrable Notes be marked as
paid or otherwise satisfied.
19
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Notes and their respective counsel
in connection with any filings required to be made with the NASD.
(t) Use its best efforts to cause all Securities covered by a Registration
Statement to be listed on each securities exchange, if any, on which
similar debt securities issued by the Company are then listed.
(u) Use its best efforts to take such other steps as may be reasonably
necessary to effect the registration of the Registrable Notes covered
by a Registration Statement contemplated hereby.
(v) The Company may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being
effected to furnish to the Company such information regarding such
seller or Participating Broker-Dealer and the distribution of such
Registrable Notes as the Company may, from time to time, reasonably
request in writing. The Company may exclude from such registration the
Registrable Notes of any seller who fails to furnish such information
within a reasonable time (which time in no event shall exceed 45 days,
subject to Section 3(d) hereof) after receiving such request. Each
seller of Registrable Notes or Participating Broker-Dealer as to which
any registration is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished by such seller not materially
misleading.
(w) Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to
be sold by such Participating Broker-Dealer, as the case may be, that,
upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 6(e)(2)(ii), 6(e)(2)(iii),
6(e)(2)(iv), 6(e)(2)(v), or 6(e)(2)(vi), such Holder will forthwith
discontinue disposition of such Registrable Notes covered by a
Registration Statement and such Participating Broker-Dealer will
forthwith discontinue disposition of such Exchange Notes pursuant to
any Prospectus and, in each case, forthwith discontinue dissemination
of such Prospectus until such Holder's or Participating
Broker-Dealer's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(k), or until it is advised in
writing (the "Advice") by the Company and the Subsidiary Guarantors
that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto and, if so
directed by the Company and the Subsidiary Guarantors, such Holder or
Participating Broker-Dealer, as the case may be, will deliver to the
Company all copies, other than permanent file copies, then in such
Holder's or Participating Broker-Dealer's possession, of the
Prospectus covering such Registrable Notes current at the time of the
receipt of such notice. In the event the Company and the Subsidiary
Guarantors shall give any such notice, the Applicable Period shall be
extended by the number of days during such periods from and including
the date of the giving of such notice to
20
and including the date when each Participating Broker-Dealer shall
have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 6(k) or (y) the Advice.
7. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company and the Subsidiary Guarantors shall
be borne by the Company and the Subsidiary Guarantors, whether or not
the Exchange Offer or a Shelf Registration is filed or becomes
effective, including, without limitation, (i) all registration and
filing fees, including, without limitation, (A) fees with respect to
filings required to be made with the NASD in connection with any
Underwritten Offering and (B) fees and expenses of compliance with
state securities or Blue Sky laws as provided in Section 6(h) hereof
(including, without limitation, reasonable fees and disbursements of
counsel in connection with Blue Sky qualifications of the Registrable
Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of
such jurisdictions (x) where the Holders are located, in the case of
the Exchange Notes, or (y) as provided in Section 6(h), in the case of
Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses,
including, without limitation, expenses of printing Prospectuses if
the printing of Prospectuses is requested by the managing underwriter
or underwriters, if any, or by the Holders of a majority in aggregate
principal amount of the Registrable Notes included in any Registration
Statement or by any Participating Broker-Dealer during the Applicable
Period, as the case may be, (iii) messenger, telephone and delivery
expenses incurred in connection with the performance of their
obligations hereunder, (iv) fees and disbursements of counsel for the
Company, the Subsidiary Guarantors and, subject to Section 7(b), the
Holders, (v) fees and disbursements of all independent certified
public accountants referred to in Section 6 (including, without
limitation, the expenses of any special audit and "cold comfort"
letters required by or incident to such performance), (vi) rating
agency fees and the fees and expenses incurred in connection with the
listing of the Securities to be registered on any securities exchange,
(vii) Securities Act liability insurance, if the Company and the
Subsidiary Guarantors desire such insurance, (viii) fees and expenses
of all other Persons retained by the Company and the Subsidiary
Guarantors, (ix) fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in an
offering pursuant to Section 3 of Schedule E to the By-laws of the
NASD, but only where the need for such a "qualified independent
underwriter" arises due to a relationship with the Company and the
Subsidiary Guarantors, (x) internal expenses of the Company and the
Subsidiary Guarantors (including, without limitation, all salaries and
expenses of officers and employees of the Company or the Subsidiary
Guarantors performing legal or accounting duties), (xi) the expense of
any annual audit, (xii) the fees and expenses of the Trustee and
(xiii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements,
securities sales
21
agreements, indentures and any other documents necessary in order to
comply with this Agreement.
(b) The Company and the Subsidiary Guarantors shall reimburse the Holders
for the reasonable fees and disbursements of not more than one counsel
chosen by the Holders of a majority in aggregate principal amount of
the Registrable Notes to be included in any Registration Statement.
The Company and the Subsidiary Guarantors shall pay all documentary,
stamp, transfer or other transactional taxes attributable to the
issuance or delivery of the Exchange Notes or Private Exchange Notes
in exchange for the Notes; provided that the Company shall not be
required to pay taxes payable in respect of any transfer involved in
the issuance or delivery of any Exchange Note or Private Exchange Note
in a name other than that of the Holder of the Note in respect of
which such Exchange Note or Private Exchange Note is being issued. The
Company and the Subsidiary Guarantors shall reimburse the Holders for
fees and expenses (including reasonable fees and expenses of counsel
to the Holders) relating to any enforcement of any rights of the
Holders under this Agreement.
8. INDEMNIFICATION
(a) Indemnification by the Company and the Subsidiary Guarantors. The
Company and the Subsidiary Guarantors jointly and severally agree to
indemnify and hold harmless each Holder of Registrable Notes, Exchange
Notes or Private Exchange Notes and each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period, each Person, if
any, who controls each such Holder (within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act) and the
officers, directors and partners of each such Holder, Participating
Broker-Dealer and controlling person, to the fullest extent lawful,
from and against any and all losses, claims, damages, liabilities,
costs (including, without limitation, reasonable costs of preparation
and reasonable attorneys' fees as provided in this Section 8) and
expenses (including, without limitation, reasonable costs and expenses
incurred in connection with investigating, preparing, pursuing or
defending against any of the foregoing) (collectively, "Losses"), as
incurred, directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue or alleged untrue
statement of a material fact contained in any Registration Statement,
Prospectus or form of prospectus, or in any amendment or supplement
thereto, or in any 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, in light of the
circumstances under which they were made, not misleading, but only to
the extent, that such Losses are finally judicially determined by a
court of competent jurisdiction in a final, unappealable order, except
insofar as such Losses are solely based upon information relating to
such Holder or Participating Broker-Dealer and furnished in writing to
the Company and the Subsidiary Guarantors (or reviewed and approved in
writing) by such Holder or Participating Broker-Dealer or their
counsel expressly for use therein; provided, however, that the Company
and the Subsidiary Guarantors will not be liable to any Indemnified
Party (as defined
22
below) under this Section 8 to the extent Losses were solely caused by
an untrue statement or omission or alleged untrue statement or
omission that was contained or made in any preliminary prospectus and
corrected in the Prospectus or any amendment or supplement thereto if
(i) the Prospectus does not contain any other untrue statement or
omission or alleged untrue statement or omission of a material fact
that was the subject matter of the related proceeding, (ii) any such
Losses resulted from an action, claim or suit by any Person who
purchased Registrable Notes or Exchange Notes which are the subject
thereof from such Indemnified Party and (iii) it is established in the
related proceeding that such Indemnified Party failed to deliver or
provide a copy of the Prospectus (as amended or supplemented) to such
Person with or prior to the confirmation of the sale of such
Registrable Notes or Exchange Notes sold to such Person if required by
applicable law, unless such failure to deliver or provide a copy of
the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 6 of this Agreement. The
Company and the Subsidiary Guarantors also agree to indemnify
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, their
officers, directors, agents and employees and each Person who controls
such Persons (within the meaning of Section 5 of the Securities Act or
Section 20(a) of the Exchange Act) to the same extent as provided
above with respect to the indemnification of the Holders or the
Participating Broker-Dealer.
(b) Indemnification by Holder. In connection with any Registration
Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus in which a Holder is
participating, such Holder shall furnish to the Company and the
Subsidiary Guarantors in writing such information as the Company and
the Subsidiary Guarantors reasonably request for use in connection
with any Registration Statement, Prospectus or form of prospectus, any
amendment or supplement thereto, or any preliminary prospectus and
shall indemnify and hold harmless the Company, the Subsidiary
Guarantors, their respective directors and each Person, if any, who
controls the Company and the Subsidiary Guarantors (within the meaning
of Section 15 of the Securities Act and Section 20(a) of the Exchange
Act), and the directors, officers and partners of such controlling
persons, to the fullest extent lawful, from and against all Losses
arising out of or based upon any untrue or alleged untrue statement of
a material fact contained in any Registration Statement, Prospectus or
form of prospectus or in any amendment or supplement thereto or in any
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, in the light of the circumstances under
which they were made, not misleading to the extent, but only to the
extent, that such losses are finally judicially determined by a court
of competent jurisdiction in a final, unappealable order to have
resulted solely from an untrue statement or alleged untrue statement
of a material fact or omission or alleged omission of a material fact
contained in or omitted from any information so furnished in writing
by such Holder to the Company and the Subsidiary Guarantors expressly
for use therein. Notwithstanding the foregoing, in no event
23
shall the liability of any selling Holder be greater in amount than
such Holder's Maximum Contribution Amount (as defined below).
(c) Conduct of Indemnification Proceedings. If any proceeding shall be
brought or asserted against any Person entitled to indemnity hereunder
(an "Indemnified Party"), such Indemnified Party shall promptly notify
the party or parties from which such indemnity is sought (the
"Indemnifying Party" or "Indemnifying Parties", as applicable) in
writing; provided, that the failure to so notify the Indemnifying
Parties shall not relieve the Indemnifying Parties from any obligation
or liability except to the extent (but only to the extent) that it
shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal) that the Indemnifying
Parties have been prejudiced materially by such failure.
The Indemnifying Party shall have the right, exercisable by giving written
notice to an Indemnified Party, within 20 Business Days after receipt of written
notice from such Indemnified Party of such proceeding, to assume, at its
expense, the defense of any such proceeding, provided, that an Indemnified Party
shall have the right to employ separate counsel in any such proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or parties unless: (1) the
Indemnifying Party has agreed to pay such fees and expenses; or (2) the
Indemnifying Party shall have failed promptly to assume the defense of such
proceeding or shall have failed to employ counsel reasonably satisfactory to
such Indemnified Party; or (3) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party or any of its affiliates or controlling persons, and such
Indemnified Party shall have been advised by counsel that there may be one or
more defenses available to such Indemnified Party that are in addition to, or in
conflict with, those defenses available to the Indemnifying Party or such
affiliate or controlling person (in which case, if such Indemnified Party
notifies the Indemnifying Parties in writing that it elects to employ separate
counsel at the expense of the Indemnifying Parties, the Indemnifying Parties
shall not have the right to assume the defense and the reasonable fees and
expenses of such counsel shall be at the expense of the Indemnifying Party; it
being understood, however, that, the Indemnifying Party shall not, in connection
with any one such proceeding or separate but substantially similar or related
proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for such Indemnified Party).
No Indemnifying Party shall be liable for any settlement of any such
proceeding effected without its written consent, which shall not be unreasonably
withheld, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such proceeding, each Indemnifying Party
jointly and severally agrees, subject to the exceptions and limitations set
forth above, to indemnify and hold harmless each Indemnified Party from and
against any and all Losses by reason of such settlement or judgment. The
Indemnifying Party shall not consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect
24
of such proceeding for which such Indemnified Party would be entitled to
indemnification hereunder (whether or not any Indemnified Party is a party
thereto).
(d) Contribution. If the indemnification provided for in this Section 8 is
unavailable to an Indemnified Party or is insufficient to hold such
Indemnified Party harmless for any Losses in respect of which this
Section 8 would otherwise apply by its terms (other than by reason of
exceptions provided in this Section 8), then each applicable
Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall have a joint and several obligation to contribute to the amount
paid or payable by such Indemnified Party as a result of such Losses,
in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party, on the one hand, and such Indemnified Party,
on the other hand, in connection with the actions, statements or
omissions that resulted in such Losses as well as any other relevant
equitable considerations. The relative fault of such Indemnifying
Party, on the one hand, and Indemnified Party, on the other hand,
shall be determined by reference to, among other things, whether any
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact 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 any such statement or omission. The
amount paid or payable by an Indemnified Party as a result of any
Losses shall be deemed to include any legal or other fees or expenses
incurred by such party in connection with any proceeding, to the
extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in Section 8(a) or 8(b)
was available to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), a selling Holder shall not
be required to contribute, in the aggregate, any amount in excess of such
Holder's Maximum Contribution Amount. A selling Holder's "Maximum Contribution
Amount" shall equal the excess of (i) the aggregate proceeds received by such
Holder pursuant to the sale of such Registrable Notes or Exchange Notes over
(ii) the aggregate amount of damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. 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. The Holders' obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective principal amount of the
Registrable Securities held by each Holder hereunder and not joint. The
Company's and Subsidiary Guarantors' obligations to contribute pursuant to this
Section 8(d) are joint and several.
The indemnity and contribution agreements contained in this Section 8 are
in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
25
9. RULES 144 AND 144A
The Company covenants that it shall (a) file the reports required to be
filed by it (if so required) under the Securities Act and the Exchange Act in a
timely manner and, if at any time the Company is not required to file such
reports, it will, upon the written request of any Holder of Registrable Notes,
make publicly available other information necessary to permit sales pursuant to
Rule 144 and 144A and (b) take such further action as any Holder may reasonably
request in writing, all to the extent required from time to time to enable such
Holder to sell Registrable Notes without registration under the Securities Act
pursuant to the exemptions provided by Rule 144 and Rule 144A. Upon the request
of any Holder, the Company shall deliver to such Holder a written statement as
to whether it has complied with such information and requirements.
10. UNDERWRITTEN REGISTRATIONS OF REGISTRABLE NOTES
If any of the Registrable Notes covered by any Shelf Registration is to be
sold in an underwritten offering, the investment banker or investment bankers
and manager or managers that will manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable Notes
included in such offering; provided, however, that such investment banker or
investment bankers and manager or managers must be reasonably acceptable to the
Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
11. MISCELLANEOUS
(a) Remedies. In the event of a breach by either the Company or any of the
Subsidiary Guarantors of any of their respective obligations under
this Agreement, each Holder, in addition to being entitled to exercise
all rights provided herein, in the Indenture or, in the case of the
Initial Purchaser, in the Purchase Agreement, or granted by law,
including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and the
Subsidiary Guarantors agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by
either the Company or any of the Subsidiary Guarantors of any of the
provisions of this Agreement and hereby further agree that, in the
event of any action for specific performance in respect of such
breach, the Company shall (and shall cause each Subsidiary Guarantor
to) waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and each of the Subsidiary
Guarantors have not entered, as of the date hereof, and the Company
and each of
26
the Subsidiary Guarantors shall not enter, after the date of this
Agreement, into any agreement with respect to any of its securities
that is inconsistent with the rights granted to the Holders of
Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Company and each of the Subsidiary Guarantors
have not entered and will not enter into any agreement with respect to
any of its securities that will grant to any Person piggy-back rights
with respect to a Registration Statement.
(c) Adjustments Affecting Registrable Notes. The Company shall not,
directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability
of the Holders to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than
with the prior written consent of the Holders of not less than a
majority in aggregate principal amount of the then outstanding
Registrable Notes in circumstances that would adversely affect any
Holders of Registrable Notes; provided, however, that Section 8 and
this Section 11(d) may not be amended, modified or supplemented
without the prior written consent of each Holder. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof
with respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being tendered
pursuant to the Exchange Offer or sold pursuant to a Notes
Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being tendered or
being sold by such Holders pursuant to such Notes Registration
Statement.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Securities or to any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar of the Notes, with a copy in like manner
to the Initial Purchaser as follows:
Jefferies & Company, Inc.
520 Madison Avenue, 12th Floor
New York, NY 10022
Facsimile No.: (212) 284-2424
Attention: Josh Targoff, Esq.
27
with a copy to:
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Facsimile No.: (212) 969-2900
Attention: Julie M. Allen, Esq.
(ii) if to the Initial Purchaser, at the address specified in Section
11(e)(i);
(iii) if to the Company or any Subsidiary Guarantor, as follows:
Altra Industrial Motion, Inc.
14 Hayward Street
Quincy, Massachusetts 02171
Facsimile No. (617) 689-6202
Attention: Michael L. Hurt
with a copy to:
Weil Gotshal & Manges, LLP
767 Fifth Avenue
New York, NY 10153
Facsimile No. (212) 310-8007
Attention: Matthew Bloch, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the United States mail, postage prepaid, if mailed; one
Business Day after being timely delivered to a next-day air courier guaranteeing
overnight delivery; and when receipt is acknowledged by the addressee, if
telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties
hereto, including, without limitation and without the need for an
express assignment, subsequent Holders of Securities.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
28
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITS AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY
IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE COMPANY AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY
HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN
ANY OTHER JURISDICTION.
(j) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(k) Securities Held by the Company or Its Affiliates. Whenever the consent
or approval of Holders of a specified percentage of Securities is
required hereunder, Securities held by the Company or its affiliates
(as such term is defined in Rule
29
405 under the Securities Act) shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage.
(l) Third Party Beneficiaries. Holders and Participating Broker-Dealers
are intended third party beneficiaries of this Agreement and this
Agreement may be enforced by such Persons.
(m) Entire Agreement. This Agreement, together with the Purchase
Agreement, the Indenture and the Collateral Agreements, is intended by
the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter
contained herein and therein and any and all prior oral or written
agreements, representations, or warranties, contracts, understanding,
correspondence, conversations and memoranda between the Initial
Purchaser on the one hand and the Company and the Subsidiary
Guarantors on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in
interest or successors in interest with respect to the subject matter
hereof and thereof are merged herein and replaced hereby.
(n) Blackout Period.
(i) Notwithstanding anything herein to the contrary, the Company may
suspend the filing, effectiveness or use of any Registration
Statement (and therefore suspend sales thereunder) for certain
periods ("Blackout Periods") if the majority of the Company's
board of directors (the "Board") determines in good faith that
the offer or sale of Registrable Securities thereunder would (A)
materially impede, delay or interfere with any material pending
or proposed financing, acquisition, corporate reorganization or
other similar transaction involving the Company for which the
Board has authorized negotiations; or (B) require disclosure of
material nonpublic information which, if disclosed at such time,
would be materially harmful to the Company's interests.
(ii) The cumulative Blackout Periods in any 12-month period commencing
on the Closing Date may not exceed an aggregate of 90 days during
any 12-month period. The Company may exercise its rights pursuant
to this Section 11(n) twice during any 12-month period, and then
only as to separate events.
30
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ALTRA INDUSTRIAL MOTION, INC.
By: /s/ David Wall
------------------------------------
Name: David Wall
----------------------------------
Title: Chief Financial Officer
---------------------------------
AMERICAN ENTERPRISES MPT CORP.
AMERICAN ENTERPRISES MPT HOLDINGS, LLC
AMERIDRIVES INTERNATIONAL, LLC
BOSTON GEAR LLC
FORMSPRAG LLC
INERTIA DYNAMICS LLC
KILIAN MANUFACTURING CORPORATION
NUTTALL GEAR LLC
WARNER ELECTRIC INTERNATIONAL HOLDING,
INC.
WARNER ELECTRIC LLC
WARNER ELECTRIC TECHNOLOGY LLC
By: /s/ Michael L. Hurt
------------------------------------
Name: Michael L. Hurt
Title: Chief Executive Officer
31
TB WOOD'S CORPORATION
By: /s/ William T. Fejes, Jr.
------------------------------------
Name: William T. Fejes, Jr.
----------------------------------
Title: President, CEO and Director
---------------------------------
PLANT ENGINEERING CONSULTANTS, LLC
By: /s/ William T. Fejes, Jr.
------------------------------------
Name: William T. Fejes, Jr.
----------------------------------
Title: President
---------------------------------
TB WOOD'S ENTERPRISES, INC.
By: /s/ Joseph C. Horvath
------------------------------------
Name: Joseph C. Horvath
----------------------------------
Title: President
---------------------------------
TB WOOD'S INCORPORATED
By: /s/ William T. Fejes, Jr.
------------------------------------
Name: William T. Fejes, Jr.
----------------------------------
Title: President, CEO and Director
---------------------------------
REGISTRATION RIGHTS AGREEMENT
ACCEPTED AND AGREED TO:
JEFFERIES & COMPANY, INC.
By: /s/ Craig Zaph
---------------------------------
Name: Craig Zaph
-------------------------------
Title: MD
------------------------------
REGISTRATION RIGHTS AGREEMENT