$125,000,000
ACTUANT CORPORATION
2% CONVERTIBLE SENIOR SUBORDINATED DEBENTURES DUE 2023
REGISTRATION RIGHTS AGREEMENT
November 10, 2003
Wachovia Capital Markets, LLC
Xxxxxxx, Xxxxx & Co.
c/o Wachovia Capital Markets, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Actuant Corporation, a Wisconsin corporation (the "Company"), proposes
to issue and sell to Wachovia Capital Markets, LLC and Xxxxxxx, Sachs & Co. (the
"Initial Purchasers"), upon the terms set forth in a purchase agreement among
the Company and each of the subsidiaries of the Company as listed on Schedule A
hereto (each a "Guarantor" and, collectively, the "Guarantors" and, together
with the Company, the "Companies") and the Initial Purchasers dated as of
November 5, 2003 (the "Purchase Agreement"), $125,000,000 aggregate principal
amount, plus an option (the "Option") to purchase up to an additional
$25,000,000 aggregate principal amount, of its 2% Convertible Senior
Subordinated Debentures due 2023 (the "Debentures"). The Debentures will be
issued pursuant to an Indenture, dated as of November 10, 2003 (the
"Indenture"), among the Company, the Guarantors, as guarantors, and U.S. Bank
National Association, trustee (the "Trustee"). The obligations of the Company
under the Debentures and the Indenture will be fully and unconditionally
guaranteed (the "Guarantees" and, together with the Debentures, the
"Securities") on an unsecured, senior subordinated basis by the Guarantors
pursuant to the terms of the Indenture. The Securities will be convertible into
shares of Common Stock, at the conversion price set forth in the Indenture, as
adjusted from time to time pursuant to the terms of the Indenture (the shares of
Common Stock issuable upon conversion of the Securities, the "Underlying Common
Stock"). As an inducement to the Initial Purchasers to enter into the Purchase
Agreement, the Companies agree with the Initial Purchasers, for the benefit of
(i) the Initial Purchasers as Initial Purchasers and (ii) the beneficial owners
(including the Initial Purchasers) from time to time of the Securities and of
the Underlying Common Stock (each of the foregoing, a "Holder", and,
collectively, the "Holders"), as follows:
1. Shelf Registration and Certain Definitions.
(a) The Companies shall prepare and file with the Securities
and Exchange Commission (the "Commission") as soon as practicable but in no
event later than 90 days (such 90th day being a "Filing Deadline") after
November 10, 2003 (the "Closing Date"), a "shelf" registration statement on Form
S-3 or on another appropriate form (the "Initial Shelf Registration Statement"
and together with any Subsequent Shelf Registration Statement or New Shelf
Registration Statement (each as defined below), including, in each case, the
prospectus, amendments and supplements to such registration statements,
including post-effective amendments, all exhibits and all materials incorporated
by reference or deemed to be incorporated by reference in such registration
statements, are herein collectively referred to as the "Shelf Registration
Statement"), for an offering to be made on a delayed or continuous basis
pursuant to Rule 415 of the Securities Act of 1933, as amended (the "Securities
Act") (the "Shelf Registration"), registering the resale from time to time by
Holders thereof (who satisfy certain conditions relating to the provision of
information in connection with the Shelf Registration Statement) of all of the
Registrable Securities (as defined below) (the "Shelf Registration Statement").
The Shelf Registration Statement shall be on an appropriate form under the
Securities Act permitting registration of such Registrable Securities for resale
by such Holders from time to time in accordance with the methods of distribution
elected by the Holders of Registrable Securities and set forth in the Shelf
Registration Statement. The Companies shall use their reasonable best efforts to
cause the Initial Shelf Registration Statement to be declared effective under
the Securities Act as promptly as is practicable but in any event within 180
days after the Closing Date (the "Effectiveness Deadline Date"), provided that
if any Securities are issued upon exercise of the Option granted to the Initial
Purchasers in the Purchase Agreement, and the date or dates on which such
Securities are issued occurs after the Closing Date, the Companies will take
such reasonable steps, prior to the effective date of the Initial Shelf
Registration Statement, to ensure that such Securities issued upon exercise of
the Option and the Underlying Common Stock are included in the Shelf
Registration Statement on the same terms as the Securities, and the related
Underlying Common Stock, issued on the Closing Date. The Companies shall use
their reasonable best efforts to keep the Initial Shelf Registration Statement,
or any Subsequent Shelf Registration Statement, continuously effective under the
Securities Act to permit the prospectus, forming a part thereof, to be used
lawfully by the Holders of the Registrable Securities, until the earliest of (i)
the second anniversary of the date on which the Companies file the Shelf
Registration Statement (or for such longer period if extended pursuant to
Section 2(h) below), (ii) the date when all the Registrable Securities
registered under the Shelf Registration Statement have been sold pursuant
thereto or (iii) the date when all the Registrable Securities held by
non-affiliates (as defined in Rule 144 under the Securities Act) are eligible to
be sold to the public pursuant to Rule 144(k) under the Securities Act, or any
successor rule thereof (such period, the "Effectiveness Period"). The Companies
shall be deemed not to have used their reasonable best efforts to keep the Shelf
Registration Statement effective during the requisite period if any of them
voluntarily take any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell such Registrable
Securities during that period, unless such action is required by applicable law.
At the time the Initial Shelf Registration Statement is declared effective, each
Holder of Registrable Securities who has provided the Company with a completed
Notice and Questionnaire (as defined below) pursuant to Section 1(d) shall be
named as a selling securityholder in the initial Shelf Registration Statement
and the related prospectus in such a manner as to permit such Holder to deliver
such prospectus to purchasers of Registrable Securities in accordance with
applicable law. Other than the Holders of Registrable Securities, none of the
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securityholders of the Companies have the right to include securities of any of
the Companies' in the Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any
Subsequent Shelf Registration Statement ceases to be effective for any reason at
any time during the Effectiveness Period (other than because all Registrable
Securities registered thereunder have been resold pursuant thereto or have
otherwise ceased to be Registrable Securities or otherwise as provided in
Section 1(d)), the Companies shall use their reasonable 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 the
Shelf Registration Statement in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration Statement covering all of the securities that as
of the date of such filing are Registrable Securities (a "Subsequent Shelf
Registration Statement"). If a Subsequent Shelf Registration Statement is filed,
the Companies shall use their reasonable best efforts to cause the Subsequent
Shelf Registration Statement to become effective as promptly as is practicable
after such filing and to keep such Subsequent Shelf Registration Statement
continuously effective until the end of the Effectiveness Period.
(c) The Companies shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Companies for such Shelf
Registration Statement, if required by the Securities Act or, to the extent to
which the Companies do not reasonably object, as reasonably requested by (i) an
Initial Purchaser in the event that it is participating in the Shelf
Registration Statement or (ii) the Majority Holders.
(d) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to a Shelf Registration
Statement and the related prospectus, it will do so only in accordance with this
Section 1(d) and Section 2(g). Each Holder of Registrable Securities agrees that
if such Holder wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and the related prospectus, such Holder agrees to deliver
a Notice and Questionnaire to the Companies. At the time the Shelf Registration
Statement is declared effective, each Holder who has provided the Companies with
an appropriately completed Notice and Questionnaire (as defined below), on or
prior to the date five Business Days prior to such time of effectiveness, and
who holds Registrable Securities shall be named as a selling securityholder in
the Initial Shelf Registration Statement and the related prospectus in such a
manner as to permit such Holder to deliver such prospectus to purchasers of
Registrable Securities in accordance with applicable law. From and after the
date the Initial Shelf Registration Statement is declared effective, the
Companies shall, as promptly as practicable, and in any event no later than ten
Business Days after the date a completed Notice and Questionnaire and other
information as may have been reasonably requested by the Companies is delivered
to the Company, as required by applicable law, prepare and file with the
Commission a post-effective amendment to the Shelf Registration Statement or
prepare and file a supplement to the related prospectus or a supplement or
amendment to any document incorporated therein by reference or file any other
document required under the Securities Act or, if required by applicable law
upon advice of counsel, prepare and file a new Shelf Registration Statement
combining, pursuant to Rule 429 under the Securities Act (or any successor
rule), the information contained in the prospectus forming part of the existing
Shelf Registration Statement (which may be the Initial Shelf Registration
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Statement or any Subsequent Shelf Registration Statement) and the prospectus
forming part of such new Shelf Registration Statement (for purposes of this
Section 1(d), this new Shelf Registration Statement is referred to as the "New
Shelf Registration Statement") so that the Holder of Registrable Securities that
has delivered such Notice and Questionnaire is named as a selling securityholder
in a Shelf Registration Statement and the related prospectus in such a manner as
to permit the Holder to deliver a prospectus relating to an effective
Registration Statement to purchasers of the Registrable Securities in accordance
with applicable law. If the Companies, upon the advice of counsel, file a
post-effective amendment to the Shelf Registration Statement or a New Shelf
Registration Statement, they shall use their reasonable best efforts to cause
such post-effective amendment or such New Shelf Registration Statement to be
declared effective under the Securities Act as promptly as is practicable, but
in any event by the date that is 60 days after the date any completed Notice and
Questionnaire is delivered to the Company (the "Amendment Effectiveness
Deadline"), provided that the Amendment Effectiveness Deadline shall be extended
by 10 Business Days from the expiration of a Deferral Period (as defined below)
if such Deferral Period is in effect on the Amendment Effectiveness Deadline;
provided, further, that if under applicable law the Companies have more than one
option as to the type or manner of making any such filing referred to in this
Section 1(d), it will make the required filing or filings of a type or in the
manner that is reasonably expected to result in the earliest availability of a
prospectus necessary for effecting resales of Registrable Securities. The
Companies shall also (i) provide any Notice Holder with copies of any documents
filed pursuant to this Section 1(d) and (ii) notify any Notice Holder as
promptly as practicable after the effectiveness under the Securities Act of any
post-effective amendment or such New Shelf Registration Statement filed pursuant
to this Section 1(d). If a Holder of Registrable Securities delivers a Notice
and Questionnaire during a Deferral Period, the Companies shall so inform the
Holder delivering such Notice and Questionnaire and shall take the actions set
forth above upon expiration of the Deferral Period. Notwithstanding anything
contained herein to the contrary, the Companies shall be under no obligation to
name any Holder that has not submitted a Notice and Questionnaire to the Company
as a selling securityholder in any Shelf Registration Statement or related
prospectus.
(e) Notwithstanding any other provisions of this Agreement to
the contrary, the Companies shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement and as of the date of filing any
prospectus amendment or supplement, as applicable, (i) to comply in all material
respects with the applicable requirements of the Securities Act and the rules
and regulations of the Commission and (ii) not to contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) As used in this Agreement, the following terms shall have
the following meanings:
"Applicable Conversion Price" as of any date of determination
means the Conversion Price (as defined in the Indenture) in effect as
of such date of determination or, if no Securities are then
outstanding, the Conversion Price that would be in effect were
Securities outstanding on such date.
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"Business Day" has the meaning set forth in the Indenture.
"Common Stock" means the shares of Class A common stock, $0.20
par value per share, of the Company and any other shares of common
stock as may constitute Common Stock for purposes of the Indenture,
including the Underlying Common Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Majority Holders" means the Holders of Registrable Securities
that hold a majority of the then outstanding aggregate principal amount
of Securities registered under a Shelf Registration Statement, provided
that holders of Underlying Common Stock shall, for purposes of this
definition, be deemed to be holders of the aggregate principal amount
of Securities from which such Common Stock was converted, and provided
further that Securities or Underlying Common Stock which have been sold
or otherwise transferred pursuant to the Shelf Registration Statement
shall not be included in the calculation of Majority Holders.
"Notice and Questionnaire" means the Selling Securityholder
Notice and Questionnaire substantially in the form of Exhibit A hereto.
"Notice Holder" means, on any date, any Holder that has
delivered a fully completed and executed Notice and Questionnaire to
the Company on or prior to such date and holds Registrable Securities
as of such date.
"Registrable Securities" means the Securities, until such
Securities have been converted into or exchanged for the Underlying
Common Stock and, at all times subsequent to any such conversion or
exchange, the Underlying Common Stock and any securities into or for
which such Underlying Common Stock have been converted or exchanged,
and any security issued with respect thereto upon any stock dividend,
split or similar event until, in the case of any such security, (A) the
earliest of (i) its effective registration under the Securities Act and
resale in accordance with the Shelf Registration Statement covering it,
(ii) expiration of the holding period that would be applicable thereto
under Rule 144(k) under the Securities Act were it not held by an
"affiliate" (as defined in Rule 144 under the Securities Act or any
successor rule thereof) of any of the Companies and (iii) its sale to
the public pursuant to Rule 144, and (B) as a result of the event or
circumstance described in any of the foregoing clauses (i) through
(iii), the legends with respect to transfer restrictions required under
the Indenture are removed or removable in accordance with the terms of
the Indenture or such legend, as the case may be.
2. Registration Procedures. In connection with the Shelf
Registration contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Companies shall (i) furnish to the Initial Purchasers
any Shelf Registration Statement and each amendment thereof and the related
prospectus, and each amendment or supplement thereto and the Companies shall use
all commercially reasonable efforts to reflect in the Shelf Registration
Statement, when so filed with the Commission, such comments as the Initial
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Purchasers reasonably may propose within a reasonable period of time and (ii) as
required under the Securities Act, include information from the Notice and
Questionnaire regarding the Notice Holders who propose to sell Registrable
Securities, and the methods of distribution they have elected for their
Registrable Securities, pursuant to the Shelf Registration Statement as selling
securityholders.
(b) The Companies, as promptly as reasonably practicable (but
in any event within two Business Days), shall give written notice to the Initial
Purchasers and the Holders (which notice pursuant to clauses (ii) through (v)
hereof shall be accompanied by an instruction to suspend the use of the
prospectus related to any Shelf Registration Statement until the requisite
changes have been made):
(i) when any Shelf Registration Statement or any amendment
thereto or any prospectus or any prospectus supplement included therein
has been filed with the Commission and when the Shelf Registration
Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or any
order preventing or suspending the use of any prospectus included
therein or the initiation or threat of any proceedings for that
purpose;
(iv) of the receipt by the Companies or its legal counsel of
any notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Companies
to make changes in the Shelf Registration Statement or the prospectus
so that, as of such date, neither the Shelf Registration Statement nor
the related prospectus contains an untrue statement of a material fact
nor omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the related
prospectus, in light of the circumstances under which they were made)
not misleading.
(c) The Companies shall use its reasonable best efforts to
obtain the withdrawal, within the time period set forth in Section 1(b), of (i)
any order suspending the effectiveness of the Shelf Registration Statement, (ii)
any order preventing or suspending the use of a prospectus or (iii) the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for offer or sale in any jurisdiction.
(d) The Companies shall furnish to the Initial Purchasers and
each Holder of Registrable Securities included within the coverage of the Shelf
Registration, without charge, at least one copy of the Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules and, if such Holder requests, all exhibits thereto
(including those, if any, incorporated by reference).
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(e) The Companies shall, during the Effectiveness Period,
deliver to the Initial Purchasers and to each Holder of Registrable Securities
included within the coverage of the Shelf Registration (including any sales or
placement agent acting on their behalf), without charge, as many copies of the
prospectus (including each preliminary prospectus, if any) included in the Shelf
Registration Statement and any amendment or supplement thereto as such person
may reasonably request. The Companies consent, subject to the provisions of this
Agreement, to the use of such prospectus or any amendment or supplement thereto
by each of the selling Holders of the Registrable Securities in connection with
the offering and sale of the Registrable Securities covered by the prospectus,
or any amendment or supplement thereto, included in the Shelf Registration
Statement.
(f) Prior to any public offering of the Registrable Securities
pursuant to any Shelf Registration Statement the Companies shall register or
qualify or cooperate with the Holders of the Registrable Securities included
therein and their respective counsel in connection with the registration or
qualification (or exemption from qualification) of the Registrable Securities
for offer and sale under the securities or "blue sky" laws of such jurisdictions
within the United States as any Holder of Registrable Securities reasonably
requests in writing, shall maintain such qualification in effect so long as
Registrable Securities are outstanding and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions of the
Registrable Securities covered by such Shelf Registration Statement; provided,
however, that none of the Companies shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so qualified
or (ii) take any action which would subject it to general service of process or
to taxation in excess of a nominal amount in any jurisdiction where it is not
then so subject.
(g) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 2(b) above, the Companies shall promptly
prepare and file with the Commission a post-effective amendment to the Shelf
Registration Statement or an amendment or supplement to the related prospectus
or file with the Commission any such other required document, as the case may
be, so that, as thereafter delivered to Holders or purchasers of Registrable
Securities, the Shelf Registration Statement and the related prospectus will not
contain an 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 the case of the related prospectus, in light of the circumstances under
which they were made) not misleading. If the Companies notify the Initial
Purchasers and the Holders of Registrable Securities in accordance with
paragraphs (ii) through (v) of Section 2(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made, then
the Initial Purchasers and the Holders of Registrable Securities shall suspend
use of such prospectus (such period during which the availability of the Shelf
Registration Statement and any related prospectus is suspended being a "Deferral
Period"), and the period of effectiveness of the Shelf Registration Statement
provided for in Section 1(a) above shall each be extended by the number of days
from and including the date of the giving of such notice to and including the
date when the Initial Purchasers and the Holders of Registrable Securities shall
have received such amended or supplemented prospectus pursuant to this Section
2(g). The Companies will use their reasonable best efforts to ensure that the
use of the prospectus related to an effective Shelf Registration Statement may
be resumed as promptly as is practicable. The Companies shall be entitled to
exercise their right under this Section 2(g) to suspend the availability of the
Shelf Registration Statement or any related prospectus, without incurring or
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accruing any obligation to pay Liquidated Damages pursuant to Section 5(a), for
one or more periods not to exceed 30 days (or 60 days if a previously
undisclosed proposed or pending material business transaction would be required
to be disclosed in the Shelf Registration Statement and the prospectus contained
therein) in any 3-month period and not to exceed, in the aggregate, 90 days in
any 12-month period.
(h) Prior to the effective date of the Initial Shelf
Registration Statement, the Companies will provide (i) the Holders a CUSIP
number for the Registrable Securities and (ii) the Trustee with global
certificates for the Securities in a form eligible for deposit with The
Depository Trust Company.
(i) The Companies shall prepare and file with the Commission
such amendments and post-effective amendments to each Shelf Registration
Statement as may be necessary to keep such Shelf Registration Statement
continuously effective for the applicable period specified in Section 1(a) and
shall cause the related prospectus to be supplemented by any required prospectus
supplement to be filed pursuant to Rule 424 under the Securities Act (or any
similar provisions then in force).
(j) The Companies will comply with all rules and regulations
of the Commission to the extent and so long as they are applicable to the Shelf
Registration Statement and will make generally available to its securityholders
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 under the Securities Act, no later than 45 days
after the end of a 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first day of the Company's first fiscal quarter commencing
after the effective date of the Shelf Registration Statement or each
post-effective amendment to any Shelf Registration, which statement shall cover
such 12-month period.
(k) The Companies shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended, not later than the effective
date of the Initial Shelf Registration Statement containing such changes, if
any, as shall be necessary for such qualification. In the event that such
qualification would require the appointment of a new trustee under the
Indenture, the Companies shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(l) The Companies may require each Holder of Registrable
Securities to be sold pursuant to a Shelf Registration Statement to furnish to
the Companies such information regarding such Holder and the distribution of the
Registrable Securities that may from time to time be required by the Securities
Act for inclusion in a Shelf Registration Statement, and the Companies may
exclude from such registration the Registrable Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
(m) The Companies shall enter into such customary agreements
and take all such other action as any Holder shall reasonably request in order
to facilitate the disposition of the Registrable Securities pursuant to any
Shelf Registration Statement.
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(n) The Companies shall (i) make available, at reasonable
times and in a reasonable manner, for inspection by the Notice Holders, any
underwriter participating in any disposition pursuant to a Shelf Registration
Statement and any attorney, accountant or other agent retained by the Notice
Holders or any such underwriter, all relevant financial and other records,
pertinent corporate documents and properties of the Companies and (ii) cause the
officers, directors, employees, accountants, attorneys and auditors of the
Companies to supply all relevant information reasonably requested by the Notice
Holders or any such underwriter, attorney, accountant or agent in connection
with the Shelf Registration Statement prior to its effectiveness, in each case,
as shall be reasonably necessary to enable such persons, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided,
however, that (i) the foregoing inspection and information gathering shall be
coordinated on behalf of the Notice Holders and other parties, by one counsel
designated by and on behalf of the Majority Holders and (ii) the Companies shall
have no obligation to provide any information to any person that has not entered
into an agreement in form reasonably satisfactory to the Company, providing that
such person shall keep such information confidential and use such information
only for due diligence purposes in connection with the Registration Statement.
(o) The Companies will use their reasonable best efforts to
cooperate and assist in, and provide such information as is required for, any
filings required to be made with the National Association of Securities Dealers,
Inc.
(p) The Companies shall use their reasonable best efforts to
take all other steps necessary to effect the registration of the Registrable
Securities covered by a Shelf Registration Statement contemplated hereby.
(q) The Companies shall as promptly as practicable (if
reasonably requested by any Notice Holder), incorporate in a prospectus
supplement or post-effective amendment to the Shelf Registration Statement such
information as such Notice Holder shall determine to be required to be included
therein and make any required filings of such prospectus supplement or such
post-effective amendment; provided that the Companies shall not be required to
take any actions under this Section 2(q) that are not, in the reasonable opinion
of counsel for the Companies, required by applicable law or regulation.
(r) The Companies shall cause the Underlying Common Stock to
be reserved for issuance on the New York Stock Exchange.
3. Registration Expenses.
(a) All expenses incident to the Companies' performance of and
compliance with this Agreement will be borne by the Companies, regardless of
whether a Shelf Registration Statement is ever filed or becomes effective,
including without limitation:
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing, messenger and delivery
services and telephone;
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(iv) all fees and disbursements of counsel for the Companies;
(v) all application and filing fees in connection with listing
the Underlying Common Stock on the New York Stock Exchange; and
(vi) all fees and disbursements of independent certified
public accountants of the Companies.
(b) The Companies will bear their internal expenses
(including, without limitation, all salaries and expenses of their respective
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any person, including special
experts, retained by the Companies.
(c) In connection with any Shelf Registration Statement
required by this Agreement, the Companies will bear or reimburse the Notice
Holders for the reasonable fees and disbursements of one firm of legal counsel,
which shall initially be Sidley Xxxxxx Xxxxx & Xxxx LLP, but which may, with the
written consent of the Initial Purchasers (which consent shall not be
unreasonably withheld), be another nationally recognized law firm experienced in
securities law matters designated by the Companies.
4. Indemnification.
(a) The Companies, jointly and severally, agree to indemnify
and hold harmless (i) the Initial Purchasers, (ii) each other Holder, (iii) each
person, if any, who controls (within the meaning of Section 15 or Section 20 of
the Exchange Act) the Initial Purchasers or such Holder, (iv) the respective
officers, directors, employees, partners, representatives and agents of the
persons referred to in clause (i), (ii) or (iii) (any person referred to in
clause (i), (ii), (iii) or (iv) is collectively referred to for purposes of this
Section 4 as a "Holder Indemnified Party") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Registrable Securities) to which
each Holder Indemnified Party may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, other federal, state or
local law or regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of, or are based upon, any
untrue statement or alleged untrue statement of a material fact contained in a
Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating thereto, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse, as incurred, the Holder Indemnified Parties
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Companies shall not be liable
in any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in the Shelf Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to the Shelf Registration in reliance upon and in conformity
with written information pertaining to a Holder and furnished to the Companies
by or on behalf of such Holder specifically for inclusion therein and (ii) the
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Companies shall not be liable to any Holder Indemnified Party with respect to
any untrue statement or omission or alleged untrue statement or omission made in
any preliminary prospectus relating to a Shelf Registration to the extent that
any such loss, claim, damage or liability of such Holder Indemnified Party
results from the fact that such Holder Indemnified Party sold Registrable
Securities to a person as to whom it shall be established that there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the final prospectus relating to such Shelf Registration Statement in any case
where such delivery is required by the Securities Act.
(b) Each Holder of Registrable Securities, severally and not
jointly, will indemnify and hold harmless the Companies and their respective
officers, directors, employees, representatives and agents and each person, if
any, who controls the Company or any Guarantor within the meaning of Section 15
or Section 20 of the Exchange Act (collectively referred to for purposes of this
Section 4 as the "Company Indemnified Party") from and against any losses,
claims, damages or liabilities, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or Prospectus, or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Shelf Registration Statement or Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and will reimburse
the Company and the Guarantors for any legal or other expenses reasonably
incurred by the Company and the Guarantors in connection with investigating or
defending any such action or claim as such expenses are incurred; and, subject
to the limitation set forth immediately preceding this clause, shall reimburse,
as incurred, the Company Indemnified Party for any legal or other expenses
reasonably incurred by such Company Indemnified Party in connection with
investigating or defending any loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Company Indemnified Party.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 4, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve the indemnifying party from any liability which it may have to any
indemnified party under paragraph (a) or (b) above. In case any such action is
brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 4 for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
11
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect any settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities, or actions in respect thereof: (i) in
such proportion as is appropriate to reflect the relative benefits received by
the indemnifying party or parties or (ii) if the allocation provided for in the
foregoing clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Companies on the one hand
or a Holder, on the other, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
Notwithstanding any other provision of this Section 4(d), the Holders of
Registrable Securities shall not be required to contribute any amount in excess
of the amount by which the net proceeds received by such Holders from the sale
of the Registrable Securities pursuant to a Shelf Registration Statement exceeds
the amount of damages which such Holders have 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. For purposes
of this subsection (d), each person, if any, who controls such Holder
Indemnified Party within the meaning of Section 15 or Section 20 of the Exchange
Act shall have the same rights to contribution as such Holder Indemnified Party
and each person, if any, who controls the Companies within the meaning of
Section 15 or Section 20 of the Exchange Act shall have the same rights to
contribution as the Companies.
(e) The agreements contained in this Section 4 shall survive
the sale of the Registrable Securities pursuant to a Shelf Registration
Statement and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
12
5. Liquidated Damages Under Certain Circumstances.
(a) The Companies and the Initial Purchasers agree that the
Holders of Registrable Securities will suffer damages if the Companies fail to
fulfill their obligations herein. Accordingly, liquidated damages (the
"Liquidated Damages") with respect to the Registrable Securities shall be
assessed as follows if any of the following events occur (each such event in
clauses (i) through (iv) below being herein called a "Registration Default"):
(i) the Initial Shelf Registration Statement required by this
Agreement is not filed with the Commission on or prior to the Filing
Deadline;
(ii) the Initial Shelf Registration Statement required by this
Agreement is not declared effective by the Commission on or prior to
the Effectiveness Deadline Date;
(iii) the Companies have failed to perform their obligations
set forth in Section 1(d) within the time period required therein; or
(iv) any Shelf Registration Statement required by this
Agreement has been declared effective by the Commission but (A) such
Shelf Registration Statement ceases to be effective (without being
succeeded immediately by an additional Shelf-Registration Statement
filed and declared effective) or (B) the Shelf Registration Statement
and the related prospectus ceases to be useable in connection with
resales of Registrable Securities during periods specified herein
(other than during a Deferral Period) and the Companies do not cure the
default and make the Shelf Registration Statement and the prospectus
useable within ten Business Days or, if applicable, the Companies do
not terminate the Deferral Period within the time provided for in the
last sentence of Section 2(h).
Each of the foregoing will constitute a Registration Default
whatever the reason for any such event and whether it is voluntary or
involuntary or is beyond the control of the Companies or pursuant to operation
of law or as a result of any action or inaction by the Commission.
(b) Liquidated Damages shall accrue on the Registrable
Securities over and above the interest set forth in the title of the Registrable
Securities from and including the date on which any such Registration Default
shall occur to but excluding the date on which all such Registration Defaults
have been cured, at a rate of 0.50% per annum (the "Liquidated Damages Rate") of
the aggregate principal amount of the Securities that are Registrable
Securities. In the case of Securities that have been converted into or exchanged
for Underlying Common Stock, during the occurrence of a Registration Default,
Liquidated Damages shall not be paid to the Holders, but upon conversion such
Holder shall receive the numbers of shares of Underlying Common Stock equal to
the product of (i) the shares that such Holder would have received based upon
the Applicable Conversion Rate absent a Registration Default and (ii) 1.03. In
the case of Securities that have been converted into or exchanged for Underlying
Common Stock, prior to the occurrence of a Registration Default, such Holder
shall not be entitled to Liquidated Damages or additional shares of Underlying
Common Stock. In the case of Liquidated Damages accruing solely as a result of a
Registration Default of the type described in Section 5(a)(iii), such Liquidated
Damages shall be paid only to the Notice Holders that caused the Companies to
incur the obligations set forth in Section 1(d) the non-performance of which is
the basis of such Registration Default. Any Liquidated Damages accrued with
13
respect to any principal amount of Securities called for redemption on a
redemption date or converted into Underlying Common Stock on a conversion date
prior to the interest payment date with respect to such Securities under the
Indenture, shall, in any such event, be paid instead to the Holder who submitted
such Securities for redemption or conversion on the applicable redemption date
or conversion date, as the case may be, on such date (or promptly following the
conversion date, in the case of conversion). Notwithstanding the foregoing, no
Liquidated Damages shall accrue as to any Registrable Security from and after
the earlier of (x) the date such security is no longer a Registrable Security
and (y) the expiration of the Effectiveness Period. The rate of accrual of the
Liquidated Damages with respect to any period shall not exceed the rate provided
for in this paragraph notwithstanding the occurrence of multiple concurrent
Registration Defaults. Following the cure of all Registration Defaults requiring
the payment by the Companies of Liquidated Damages to the Holders of Registrable
Securities pursuant to this Section 5, the accrual of Liquidated Damages will
cease (without in any way limiting the effect of any subsequent Registration
Default requiring the payment of Liquidated Damages by the Companies).
(c) The Trustee shall be entitled, on behalf of Holders of
Registrable Securities, to seek any available remedy for the enforcement of this
Agreement, including for the payment of any Liquidated Damages.
(d) All of the Companies' obligations set forth in this
Section 5 that are outstanding with respect to any Registrable Security at the
time such security ceases to be a Registrable Security shall survive until such
time as all such obligations with respect to such security have been satisfied
in full.
(e) The parties hereto agree that the Liquidated Damages
provided for in this Section 5 constitutes a reasonable estimate of the damages
that may be incurred by Holders of Registrable Securities by reason of the
failure of the Shelf Registration Statement to be filed or declared effective or
available for effecting resales of Registrable Securities in accordance with the
provisions hereof.
(f) Any amounts of Liquidated Damages due pursuant to Section
5(a) will be payable in cash on the regular interest payment dates with respect
to the Registrable Securities. The amount of Liquidated Damages will be
determined by multiplying the applicable Liquidated Damages Rate by the
principal amount of the Registrable Securities or the Applicable Conversion
Price of the Registrable Securities, as applicable, and further multiplied by a
fraction, the numerator of which is the number of days such Liquidated Damages
Rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months), and the denominator of which is 360.
The Registrable Securities entitled to payment of Liquidated Damages shall be
determined as of the Business Day immediately preceding the next regular
interest payment date with respect to the Registrable Securities.
6. Rules 144 and 144A. The Companies shall use their
reasonable best efforts to file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner. If at any time the
Companies are not required to file such reports, they will, upon the request of
any Holder or beneficial owner of Registrable Securities, make available such
14
other information required by Rule 144(d)(4) under the Securities Act necessary
to permit sales of their securities pursuant to Rule 144A. The Companies
covenant that they will take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Companies will provide a copy of this
Agreement to prospective purchasers of Securities identified to the Companies by
the Initial Purchasers upon request. Upon the request of any Holder of
Securities, the Companies shall deliver to such Holder a written statement as to
whether it has complied with such filing requirements. Notwithstanding the
foregoing, nothing in this Section 6 shall be deemed to require the Companies to
register any of its securities pursuant to the Exchange Act.
7. Underwritten Registrations.
(a) If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the Majority Holders whose Registrable Securities are to be
included in such offering, provided, however, that such underwriters shall be
reasonably satisfactory to the Company and the Companies shall not be
responsible for or pay for any of the fees, expenses and commissions provided to
such underwriters.
(b) No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Registrable
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
8. Miscellaneous.
(a) Holders Obligations. Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to any Shelf
Registration Statement or to receive a prospectus relating thereto, unless such
Holder has furnished the Company with a Notice and Questionnaire as required
pursuant to Section 1(d) hereof and the information set forth in the next
sentence. Each Notice Holder agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other
information regarding such Notice Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request.
Any sale of any Registrable Securities by any Holder shall constitute a
representation and warranty by such Holder that the information relating to such
Holder and its plan of distribution is as set forth in the prospectus delivered
by such Holder in connection with such disposition, that such prospectus does
not as of the time of such sale contain any untrue statement of a material fact
relating to or provided by such Holder or its plan of distribution and that such
prospectus does not as of the time of such sale omit to state any material fact
relating to or provided by such Holder or its plan of distribution necessary to
15
make the statements in such prospectus, in the light of the circumstances under
which they were made, not misleading.
(b) Remedies. The Companies acknowledge and agree that any
failure by the Companies to comply with its obligations under Section 1 and 2
hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Companies' obligations under
Sections 1 and 2 hereof. The Companies further agree to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(c) No Inconsistent Agreements. The Companies will not on or
after the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. Each of the
Companies represent and warrant that the rights granted to the Holders hereunder
do not in any way conflict with and are not inconsistent with the rights granted
to the holders of the securities of any of the Companies under any agreement in
effect on the date hereof.
(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, except by the Companies
and the written consent of the Majority Holders affected by such amendment,
modification, supplement, waiver or consents, provided, however, with respect to
any matter that directly or indirectly affects the rights of the Initial
Purchasers, the Companies shall obtain the written consent of the Initial
Purchasers against which such amendment, qualification, supplement, waiver or
consent is to be effective. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Registrable Securities are being sold pursuant to a Shelf Registration Statement
and that does not directly or indirectly affect the rights of other Holders may
be given by the Majority Holders, determined on the basis of the Registrable
Securities being sold rather than registered under such Shelf Registration
Statement or owned.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission, or air courier that guarantees overnight delivery:
(1) if to a Holder of the Registrable Securities, at the most
current address of such Holder maintained by the registrar under the
Indenture or the Company's registrar and transfer agent of the Common
Stock or, in the case of a Notice Holder, the address set forth in such
Holder's Notice and Questionnaire;
16
(2) if to the Initial Purchasers:
Wachovia Capital Markets, LLC
00 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
with a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax No.: 000-000-0000
Attention: Xxxx X. Xxxxxxx
(3) if to the Companies, at the address as follows:
Actuant Corporation
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
with a copy to:
XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Fax No.: 000-000-0000
Attention: Xxxxx X. Xxxxxxx, P.C.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(f) Third-Party Beneficiaries. The Holders shall be
third-party beneficiaries to the agreements made hereunder between the
Companies, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect their rights or the
rights of Holders hereunder.
(g) Successors and Assigns. This Agreement shall be binding
upon the Companies and its successors and assigns.
(h) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
17
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) 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 CONFLICTS OF LAWS.
(k) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Securities Held by the Companies. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Registrable
Securities is required hereunder, Registrable Securities held by the Companies
or their affiliates (as such term is defined in Rule 405 under the Securities
Act), other than subsequent Holders of Registrable Securities if such subsequent
Holders are deemed to be affiliates solely by reason of their holdings of such
Registrable Securities, shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
18
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Initial Purchasers a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Initial Purchasers and the Companies in accordance
with its terms.
Very truly yours,
ACTUANT CORPORATION
By _______________________________
Name:
Title:
ACTUANT INVESTMENTS, INC.
By _______________________________
Name:
Title:
APPLIED POWER INVESTMENTS II, INC.
By _______________________________
Name:
Title:
CALTERM TAIWAN, INC.
By _______________________________
Name:
Title:
COLUMBUS MANUFACTURING, LLC
By _______________________________
Name:
Title:
ENGINEERED SOLUTIONS L.P.
By _______________________________
Name:
Title:
GB TOOLS AND SUPPLIES, INC.
By _______________________________
Name:
Title:
NEW ENGLAND CONTROLS, INC.
By _______________________________
Name:
Title:
XXXXXXX HARDWARE CORPORATION
By _______________________________
Name:
Title:
VERSA TECHNOLOGIES, INC.
By _______________________________
Name:
Title:
VT HOLDINGS II, INC.
By _______________________________
Name:
Title:
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
WACHOVIA CAPITAL MARKETS, LLC
By ___________________________
Name:
Title:
SCHEDULE A
----------
Guarantors
----------
ACTUANT INVESTMENTS, INC.
APPLIED POWER INVESTMENTS II, INC.
CALTERM TAIWAN, INC.
COLUMBUS MANUFACTURING, LLC
ENGINEERED SOLUTIONS L.P.
GB TOOLS AND SUPPLIES, INC.
NEW ENGLAND CONTROLS, INC.
XXXXXXX HARDWARE CORPORATION
VERSA TECHNOLOGIES, INC.
VT HOLDINGS II, INC.
To include each such subsidiary of the Company that becomes a Guarantor after
the date hereof pursuant to the terms of the Indenture.
