COMMON STOCK
REGISTRATION RIGHTS AGREEMENT
This COMMON STOCK REGISTRATION RIGHTS AGREEMENT (this "Agreement"),
dated as of March 5, 1997, is made and entered into by Westinghouse Air Brake
Company, a Delaware corporation (the "Company"), Harvard Private Capital
Holdings, Inc., a Massachusetts corporation ("Harvard"), American Industrial
Partners Capital Fund II, L.P., a Delaware limited partnership ("AIP"), the
Voting Trust (the "Voting Trust") created under the Second Amended WABCO Voting
Trust/Disposition Agreement, dated as of December 13, 1995, Vestar Equity
Partners, L.P., a Delaware limited partnership ("Vestar"), Vestar Capital
Partners, Inc. ("Vestar Capital"), Xxxxxx X. Xxxxxxxxx, Xx., Xxxxxx X.
Xxxxxxxxx, Xx., as custodian for Xxxx X. Xxxxxxxxx, and Xxxxxx X. Xxxxxxxxx
(collectively, the "Pulse Shareholders").
WHEREAS, the parties hereto other than Harvard, Vestar and AIP are
parties to that certain Common Stock Registration Rights Agreement dated as of
January 31, 1995 (the "Existing Registration Rights Agreement");
WHEREAS, concurrently with this Agreement becoming effective Vestar,
Harvard, AIP and certain members of the Company's management are purchasing 6
million of the shares of Company common stock, par value $.01 per share (the
"Common Stock") owned by Scandinavian Incentive Holding B.V. ("SIH") and the
Company is redeeming 4 million of the shares of Common Stock owned by SIH (such
purchase and redemption being referred to herein collectively as the "SIH
Repurchase");
WHEREAS, the Company believes that the SIH Repurchase is in the best
interest of the Company; and
WHEREAS, the parties hereto have requested, and the Company has
agreed to provide, the registration rights set forth herein;
NOW, THEREFORE, in consideration of the premises, the covenants and
agreements contained herein and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Company, Harvard,
Vestar, Vestar Capital, AIP, the Pulse Shareholders and the Voting Trust hereby
agree as follows:
1. Definitions. As used in this agreement, the following capitalized
terms shall have the following respective meanings:
(a) "Affiliate" shall mean, when used with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
Person specified.
(b) "Control" shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
(c) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(d) "Holder" shall mean (i) each of Harvard, Vestar, Vestar Capital,
AIP, the Voting Trust, the Pulse Shareholders (so long as any such Person is a
holder of Registrable Securities) and (ii) any transferee (or subsequent
transferee) of Registrable Securities from persons identified in clause (i), who
agrees in a writing reasonably satisfactory in form and substance to the Company
to be bound by the provisions of this Agreement.
(e) "Person" shall mean an individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
(g) "Pulse Shares" shall mean the shares of Common Stock delivered
by the Company to Pulse Electronics and Pulse Computer pursuant to that certain
Asset Purchase Agreement, dated as of January 23, 1995, by and among the
Company, Pulse Acquisition Corporation, Pulse Electronics and Pulse Computer.
(h) "Registrable Securities" shall mean the Securities. As to any
particular Registrable Securities, such Securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the sale of such
Securities shall have become effective under the Securities Act and such
Securities shall have been disposed of in accordance with such registration
statement, (ii) they shall have been otherwise transferred or sold to the
public, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent disposition of
them shall not require registration of them under the Securities Act or (iii)
they shall have ceased to be outstanding.
(i) "Registration Expenses" shall mean all expenses incident to
performance of or compliance with this Agreement, including, without limitation,
(i) all SEC and stock exchange or National Association of Securities Dealers,
Inc. registration, listing and filing fees, (ii) all fees for and expenses of
complying with securities or blue sky laws (including fees and disbursements of
counsel for the underwriters in connection with blue sky qualifications of the
Registrable Securities), (iii) all word processing, duplicating, printing,
messenger and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange pursuant to clause (vii) of Section 3, (v) the fees and disbursements
of counsel for the Company and of its independent public accountants, including
the expenses of any special audits and/or "cold comfort" letters required by or
incidental to such performance and compliance, (vi) the fees and disbursements
of one counsel selected by Holders of a majority of the Registrable Securities
sought to be registered, such counsel to be reasonably satisfactory to the
Company, and (vii) any fees and disbursements of underwriters customarily paid
by the issuers or sellers of securities, but excluding underwriting discounts
and commissions payable with respect to the Registrable Securities and any
applicable transfer taxes.
(j) "Securities" shall mean, collectively, the shares of Common
Stock being acquired in the SIH Purchase (other than the four million shares
being redeemed by the Company), the Pulse Shares beneficially owned by the Pulse
Shareholders and the shares of Common Stock held from time to time in the Voting
Trust and any other shares of Common Stock which may be owned by Holders from
time to time.
(k) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(l) "SEC" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act or the
Exchange Act.
(m) "Supplemental Demand" shall mean a request by Harvard, the
Voting Trust or Vestar pursuant to Section 2(a), 2(b) or 2(c) hereof, as the
case may be (other than a first or second demand thereunder), for registration
of Registrable Securities pursuant to a Form S-3 Registration Statement at a
time when the Company is eligible to use Form S-3 for registration of such
Registrable Securities.
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2. Demand Registration.
(a) Harvard Demand. Harvard shall have the right to make two
requests to the Company for the registration of Registrable Securities owned by
Harvard, upon the terms and conditions set forth herein. Harvard's first request
(the "First Harvard Demand") may be made at any time commencing after June 30,
1998. Harvard's second request (the "Second Harvard Demand") may be made at any
time commencing one year after the consummation of any public offering of the
Registrable Securities made in connection with the exercise of the First Harvard
Demand. One or both of the Harvard demands may be made by an Affiliate of
Harvard to which Registrable Securities owned by Harvard have been transferred,
but in no event shall Harvard and such Affiliate be permitted to make more than
two demands in the aggregate pursuant to this Section 2(a). Harvard also shall
be permitted to make an unlimited number of Supplemental Demands.
(b) Voting Trust Demands. The Voting Trust shall have the right to
make two requests to the Company for the registration of Registrable Securities
held by the Voting Trust, upon the terms and conditions set forth herein. The
Voting Trust's first and second (the "First Voting Trust Demand" and "Second
Voting Trust Demand") requests maybe made at any time that the First Harvard
Demand and the Second Harvard Demand, respectively, may be made. The Voting
Trust also shall be permitted to make an unlimited number of Supplemental
Demands.
(c) Vestar Demands. Vestar shall have the right to make two requests
to the Company for the registration of Registrable Securities owned by Vestar or
Vestar Capital, upon the terms and conditions set forth herein. Vestar's first
and second (the "First Vestar Demand" and "Second Vestar Demand") requests may
be made at any time that the First Harvard Demand and the Second Harvard Demand,
respectively, may be made. One or both of the Vestar demands may be made by an
Affiliate of Vestar to which Registrable Securities owned by Vestar have been
transferred, but in no event shall Vestar and such Affiliate be permitted to
make more than two demands in the aggregate pursuant to this Section 2(c).
Vestar also shall be permitted to make an unlimited number of Supplemental
Demands.
(d) Actions Upon Demand. Upon the written request of Harvard, the
Voting Trust or Vestar, at any time at which a demand may be made in accordance
with paragraph (a), (b), or (c) above, requesting that the Company register
under the Securities Act all or part of the Registrable Securities held by such
Holder and specifying the intended method of disposition thereof, the Company
will promptly give written notice (the "Notice") of such requested registration
to the other Holders of Registrable Securities. The Company will include in such
registration all Registrable Securities of any Holder with respect to which the
Company has received written requests for inclusion therein within 15 business
days after the receipt by such Holder of the Notice (which request shall specify
the Registrable Securities intended to be disposed of by such Holder). The
Company thereupon will, as expeditiously as possible, use its reasonable best
efforts to effect the registration under the Securities Act of the Registrable
Securities so as to permit the disposition (in accordance with the intended
method thereof as aforesaid) of the Registrable Securities so to be registered.
(e) Incidental Registration. (i) If the Company at any time proposes
to register any of its securities under the Securities Act (other than pursuant
to subsection (a), (b) or (c) of this Section 2) on any form other than Form S-4
or S-8 (or any similar form then in effect) for sale for its own account or
otherwise, and if the registration form proposed to be used may be used for the
registration of Registrable Securities, the Company will each such time give
prompt written notice to all Holders of Registrable Securities of its intention
to do so. Upon the written request of any such Holder made within 30 days after
the receipt of any such notice (which request shall specify the Registrable
Securities intended to be disposed of by such Holder), the
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Company will use its reasonable best efforts to cause all such Registrable
Securities, the Holders of which shall have so requested the registration
thereof, to be registered under the Securities Act (with the securities at the
time proposed to be registered for sale for the Company's own account or
otherwise), to the extent requisite to permit the sale or other disposition (in
accordance with the intended methods thereof as aforesaid) by the Holders of the
Registrable Securities to be so registered).
No registration effected pursuant to a request or requests referred
to in this subsection (e) shall be deemed to have been effected pursuant to
subsection (a), (b) or (c) of this Section 2.
Notwithstanding anything to the contrary in this subsection (e), the
Company shall have the right to discontinue any registration under this
subsection (e) at any time prior to the effective date of such registration if
the registration of the other securities giving rise to such registration under
this subsection (e) is discontinued (and notice of such discontinuance will be
promptly given to each participating Holder); but no such discontinuation shall
preclude an immediate or subsequent request for registration pursuant to
subsections (a), (b) or (c) of this Section 2.
(f) Limitations on Demand. The Company shall not be obligated to
file a registration statement, or file any amendment or supplement thereto, and
may suspend the sellers' rights to make sales pursuant to an effective
registration statement, at any time when the Company, in the good faith judgment
of its Board of Directors, reasonably believes that the filing thereof at the
time requested, or the offering of securities pursuant thereto, would adversely
affect a pending or proposed public offering of the Company's securities, a
financing, or an acquisition, merger, recapitalization, consolidation,
reorganization or similar transaction, or negotiations, discussions or pending
proposals with respect thereto, or would otherwise be seriously detrimental to
the Company and its stockholders. The filing of a registration, or any amendment
or supplement thereto, by the Company cannot be deferred, and the sellers'
rights to make sales pursuant to an effective registration statement cannot be
suspended pursuant to the provisions of the preceding sentence for more than
fifteen days after the abandonment or consummation of any of the foregoing
proposals for transactions or, in any event, for more than 90 days after the
date of the Board's determination referenced in the preceding sentence (and the
Company shall not be entitled to request more than one such suspension in any
nine month period). If the Company pursuant to this Section 2(f) suspends the
sellers' right to make sales pursuant to an effective registration statement,
the applicable registration period shall be extended by the number of days of
such suspension. If the Company pursuant to this Section 2(f) delays the filing
with the SEC of a registration statement or any amendment or supplement thereto
or the effectiveness of such registration statement, Harvard, the Voting Trust,
or Vestar, as the case may be, may, by written notice to the Company withdraw
its request made pursuant to Section 2(a), 2(b), or 2(c), respectively, and
thereafter shall be entitled to make one additional request pursuant to Section
2(a), 2(b), or 2(c), as the case may be, in lieu of the withdrawn request.
(g) Expenses. Subject to the last sentence of Section 3(e), the
Company will pay all Registration Expenses in connection with the registration
of Registrable Securities pursuant to this Section 2, whether or not such
registration shall become effective, except that all Registration Expenses in
connection with the registration of Registrable Securities pursuant to a
Supplemental Demand by Harvard, Vestar and/or the Voting Trust, as the case may
be, shall be paid by the Holders participating in such Supplemental Registration
whether or not such registration shall become effective.
(h) Effective Registration Statement. A registration requested
pursuant to this Section 2 will not be deemed to have been effected unless a
registration statement with respect
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thereto has become effective; provided, that if, within 90 days after it has
become effective, the offering of Registrable Securities pursuant to such
registration is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court for any reason
other than a violation of applicable law solely by the Holders and the
registration has not within three business days thereafter become effective,
such registration will be deemed not to have been effected, and a Holder may, by
written notice to the Company, withdraw its request made pursuant to Section
2(a), 2(b), or 2(c), as the case may be, and thereafter shall be entitled to
make one additional request pursuant to Section 2(a), 2(b), or 2(c), as the case
may be, in lieu of the withdrawn request.
(i) Selection of Underwriters. If a requested registration pursuant
to this Section 2 involves an underwritten offering in which the Company is
participating by including therein at least $3 million of Common Stock for its
own account, the Company shall have the right to select the lead managing
underwriter of the offering, which shall be an investment banking firm of
nationally recognized standing reasonably satisfactory to the Holder demanding
registration pursuant to Section 2(a), 2(b), or 2(c), as the case may be, and
the Holder demanding registration pursuant to Section 2(a), 2(b), or 2(c), as
the case may be, shall have the right to select a co-manager, which shall be an
investment banking firm of nationally recognized standing reasonably
satisfactory to the Company. If a requested registration pursuant to this
Section 2 involves an underwritten offering in which the Company is not
participating by including therein at least $3 million of Common Stock for its
own account, the Holder demanding registration pursuant to 2(a), 2(b) or 2(c),
as the case may be, shall have the right to select the lead managing underwriter
of the offering, which shall be an investment banking firm of nationally
recognized standing reasonably satisfactory to the Company, and the Company
shall have the right to select a co-manager, which shall be an investment
banking firm of nationally recognized standing reasonably satisfactory to the
Holder demanding registration.
(j) Priority in Registrations. If a registration pursuant to this
Section 2 involves an underwritten offering and the lead managing underwriter
advises the Company in writing that, in its opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering within a price range stated by the Holder requesting
registration as being acceptable, the Company will include in such registration
the securities the Company proposes to sell for its own account, if any, and the
number of such Registrable Securities requested to be included in such
registration that, in the opinion of the lead managing underwriter, can be sold,
allocated pro rata among the Company and all requesting Holders on the basis of
the total number of shares proposed to be registered by the Company in good
faith and the number of shares of Registrable Securities then held by each such
Holder (provided that any Registrable Securities thereby allocated to any such
Holder that exceed such Holder's request will be reallocated among the remaining
requesting Holders based on the number of shares of Registrable Securities held
by each such Holder).
(k) Additional Demand Registration. Notwithstanding any other
provisions of this Section 2, at any time or from time to time, if, solely as a
result of the operation of Section 2(j), the Company effects the registration of
less than 80% of (x) the Registrable Securities requested to be registered
pursuant to Section 2(a), (y) the Registrable Securities requested to be
registered pursuant to Section 2(b), or (z) the Registrable Securities requested
to be registered pursuant to Section 2(c) and the amount which is less than such
80% threshold has not been registered pursuant to a subsequent incidental
registration pursuant to Section 2(e), the holders of not less than 50% of the
remaining Registrable Securities owned or held by Harvard, the Voting Trust or
Vestar and/or Vestar Capital, as the case may be, shall be entitled to request
an additional registration pursuant to Section 2(a), Section 2(b), or Section
2(c), as the case may be. Any such registration shall be requested and effected
in accordance with the terms of this Section 2, and the Company will pay all
Registration Expenses in connection with any such registration but only to the
same extent as the Company was required to pay such Registration Expenses
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pursuant to Section 2(g) in connection with the registration pursuant to which
such Holders initially requested registration.
(l) Registration of Other Securities. Whenever the Company shall
effect a registration pursuant to Section 2 hereof, no securities other than
Registrable Securities and Common Stock being sold by the Company for its own
account shall be included among the securities covered by such registration
unless all requesting Holders and the Company shall have consented thereto in
writing.
(m) Registration Statement Form. Registration under Section 2 hereof
shall be on such appropriate registration form prescribed by the SEC under the
Securities Act (i) as shall be selected by the Company and as shall be
reasonably acceptable to the Holder of a majority of the Registrable Securities
covered by such registration statement and (ii) as shall permit the disposition
of the Registrable Securities pursuant to the intended method of disposition
thereof specified in accordance with Section 2(d). The Company agrees to include
in such registration statement filed pursuant to Section 2 hereof all
information which any Holder, upon advice of counsel or upon the advice of the
lead managing underwriter (or upon the advice of any demanding Holder if the
Company shall have selected the lead managing underwriter or if the registration
statement is not being filed in connection with an underwritten offering), to
facilitate the marketing of such shares, shall reasonably request. Without
limiting the Company's obligations under the preceding sentence, the Company
may, if permitted by law, effect any registration requested under Section 2
hereof by the filing of a registration statement on Form S-3 (or any successor
or similar short form registration statement).
(n) "Other Registration Rights". The Company shall not grant to any
person registration rights which (i) are exercisable prior to the time when
registration rights hereunder are first exercisable, (ii) would result in the
deferral of a demand registration which could otherwise be affected hereunder,
(iii) would operate to reduce the number of Registrable Securities which could
be registered pursuant to a demand registration hereunder by Harvard, Vestar or
the Voting Trust, (iv) except with respect to Common Stock issued by the Company
in the future, would operate to reduce the number of Registrable Securities
which could be registered in any other registration hereunder or (v) would have
priority for inclusion in any registration hereunder over any Registrable
Securities of any Holder.
3. Registration Procedures. (a) If and whenever the Company is
required to use its reasonable best efforts to effect the registration under the
Securities Act of Registrable Securities as provided in this Agreement, the
Company will, as expeditiously as possible:
(i) prepare and file with the SEC as soon as practicable a
registration statement with respect to such Registrable Securities, and,
subject to Section 2(f), use its reasonable best efforts to cause such
registration statement to become effective;
(ii) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective until the earlier of (x) the date on which all of the
Registrable Securities have been disposed of in accordance with the method
of disposition set forth in such registration statement and (y) 90 days
after the effective date of such registration statement and to comply with
the provisions of the Securities Act applicable to the Company with
respect to the disposition of all securities covered by such registration
statement during such period; provided, that before filing a registration
statement or prospectus, or any amendments or supplements thereto, the
Company will furnish to one counsel, selected by the Holders of a majority
of the Registrable Securities covered by such registration statement to
represent all Holders of Registrable Securities covered by such
registration statement, at least five business days
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prior to the filing of such registration statement and the prospectus
contained therein and at least one business day prior to the filing of any
amendment or supplements thereto, copies of all documents proposed to be
filed, which documents will be subject to the review of such counsel and
no such registration statement or prospectus, or any amendment or
supplement thereto, shall be filed to which such counsel shall have
reasonably objected on the grounds that such registration statement or
prospectus, or amendment or supplement (with respect to disclosures or
omissions in the case of a registration under Section 2 relating to the
Holders of Registrable Securities), does not comply in all material
respects with the requirements of the Securities Act or the rules or
regulations thereunder and shall have specified the basis for such
objection in reasonable detail;
(iii) furnish to each seller of Registrable Securities covered by
such registration statement such number of copies of such final conformed
versions of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits and any documents
incorporated by reference), such number of copies of such registration
statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act,
and such other final documents, as such seller may reasonably request in
writing in order to facilitate the disposition of the Registrable
Securities;
(iv) use its reasonable best efforts to register or qualify the
Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as each seller
shall reasonably request, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction, subject itself to taxation in any
jurisdiction (other than taxes related to the issuance of the Registrable
Securities) or consent to general service of process in any jurisdiction
where, but for the requirements of this clause (iv), it would not be
obligated to be so qualified, subject to taxation or subject to general
service of process;
(v) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities.
(vi) promptly notify each seller of any such Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in clause (ii) of this Section 3,
of the Company's becoming aware that that prospectus included in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and at the request of any such
seller, prepare and furnish to such seller a reasonable number of copies
of an amended or supplemental prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing;
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(vii) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than
eighteen months) after the effective date of the registration statement,
an earnings statement which shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations promulgated
thereunder;
(viii) use its best efforts to list, subject to official notice of
issuance, such Registrable Securities on any securities exchange on which
the Common Stock is then listed, if such Registrable Securities are not
already so listed and if such listing is then permitted under the rules of
such exchange;
(ix) enter into such customary agreements (including an underwriting
agreement in customary form) and take such other actions as sellers of a
majority of such Registrable Securities covered by such registration
statement or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
(x) obtain a "cold comfort" letter or letters from the Company's
independent public accountants, addressed to such seller (and the
underwriters, if any), in customary form and covering matters of the type
customarily covered by "cold comfort" letters dated the effective date of
such registration statement (and, if such registration includes an
underwritten offering, dated the date of the closing under the
underwriting agreement), reasonably satisfactory in form and substance to
such seller; and
(xi) use its reasonable best efforts to furnish to each seller of
Registrable Securities a signed counterpart, addressed to such seller (and
the underwriters, if any), of a customary opinion of counsel for the
Company dated the effective date of such registration statement (and, if
such registration includes an underwritten offering, dated the date of the
closing under the underwriting agreement), reasonably satisfactory in form
and substance to such seller;
(xii) subject to Section 7, make available for reasonable inspection
by, or give reasonable access to, any seller of such Registrable
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties
of the Company, and cause all of the Company's officers, directors and
employees to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement.
(b) In connection with any registration requested pursuant to this
Agreement, management of the Company shall participate in customary road show
meetings reasonably requested upon reasonable prior notice by the lead managing
underwriter of such offering.
(c) The Company may require each seller of Registrable Securities as
to which any registration is being effected to furnish the Company with such
information regarding such seller and the distribution of such securities as
required to be included in the related registration statement as the Company may
from time to time reasonably request in writing.
(d) Each Holder of Registrable Securities being sold pursuant to a
registration effected pursuant hereto agrees that as of the date that a final
prospectus is made available to it for distribution to prospective purchasers of
such Registrable Securities it shall cease to distribute
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copies of any preliminary prospectus prepared in connection with the offer and
sale of such Registrable Securities.
(e) Each Holder of Registrable Securities further agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in clause (vi) of Section 3(a), such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by clause (vi) of Section
3(a), and, if so directed by the Company, such Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. Notwithstanding the
foregoing, the Holder shall not be responsible for any continued disposition of
Registrable Securities by any underwriter. In the event the Company
shall give any such notice, the period mentioned in clause (ii) of Section 3(a)
shall be extended by the number of days during the period from, and including
the date of the giving of, such notice pursuant to clause (vi) of Section 3(a)
and including the date when each seller of Registrable Securities covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by clause (vi) of Section 3(a). If any event
of the kind described in clause (vi) of Section 3(a) occurs and such event is
the fault solely of one or more Holders, such Holder or Holders shall pay all
Registration Expenses attributable to the preparation, filing and delivery of
any supplemented or amended prospectus contemplated by clause (vi) of Section
3(a).
(f) Each Holder of Registrable Securities agrees that it will pay
all underwriting discounts and commissions applicable to its sale of Registrable
Securities in any underwritten public offering effected pursuant to this
Agreement, all transfer taxes applicable to its sale of Registrable Securities
and, subject to the provisions set forth in clause (vi) of the definition of
Registration Expenses, the fees and disbursements of its counsel. Except as
otherwise provided in clause (vi) of the definition of Registration Expenses, if
two or more Holders jointly retain counsel, the fees and expenses of such
counsel shall be borne by such Holders on such basis as such Holders shall
mutually agree in writing.
4. Indemnification.
(a) Indemnification by the Company. In connection with any
registration statement filed by the Company under the Securities Act pursuant to
Section 2, the Company will, and it hereby agrees to, indemnify and hold
harmless, to the extent permitted by law, the seller of any Registrable
Securities covered by such registration statement, each other Person, if any,
who participates as an underwriter in the offering or sale of such securities
and each other Person, if any, who controls such Holder or seller or any such
underwriter, and their respective directors, officers, employees, stockholders,
partners, agents and representatives, and their respective Affiliates, against
any and all losses, claims, damages, expenses or liabilities, joint or several,
to which such indemnified party may become subject under the Securities Act,
common law or otherwise, insofar as such losses, claims, damages, expenses or
liabilities (or actions or proceedings in respect thereof, whether or not such
indemnified party is a party thereto) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such securities were registered under the
Securities Act, any preliminary, final or summary prospectus contained therein,
or any amendment or supplement thereto, or (ii) any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, and the Company will reimburse such indemnified party for any
legal or any other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided, that as to any preliminary prospectus, the Company shall
not be liable to any indemnified party if
-9-
such party failed to send or give a copy of the final prospectus to any person
within the time required by the Securities Act and such untrue statement or
alleged untrue statement of material fact or omission or alleged omission to
state a material fact in such preliminary prospectus was corrected in such final
prospectus; and provided, further, that the Company shall not be liable to any
indemnified party in any such case to the extent that any such loss, claim,
damage, expense, liability (or action or proceeding in respect thereof), arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement or amendment or
supplement thereto or in any such preliminary, final or summary prospectus in
reliance upon and in conformity with written information with respect to such
seller furnished to the Company by or on behalf of such seller for use in the
preparation thereof; and provided, further, that the Company shall not be liable
for any amounts paid in connection with any settlement if such settlement is
effected without the written consent of the Company (which shall not be
unreasonably withheld); and provided, further, that the Company will not be
liable to any Person who participates as an underwriter in the offering or sale
of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, under the indemnity
agreement in this Section 4(a) with respect to any preliminary prospectus or the
final prospectus or the final prospectus as amended or supplemented, as the case
may be, to the extent that any such loss, claim, damage or liability of such
underwriter or controlling Person results from the fact that such underwriter
sold Registrable Securities to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the final
prospectus (including any documents incorporated by reference therein) or of the
final prospectus as then amended or supplemented (including any documents
incorporated by reference therein), whichever is most recent, if the Company has
previously furnished copies thereof to such underwriter. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such seller or any indemnified party and shall survive the transfer of
such securities by such seller.
(b) Indemnification by the Seller. In connection with any
registration statement filed by the Company under the Securities Act pursuant to
Section 2, each Holder of Registrable Securities covered by such registration
statement shall, and hereby agrees to, indemnify and hold harmless (in the same
manner and to the same extent and subject to the same provision as set forth in
Section 4(a)) the Company, each other Holder of Registrable Securities, any
underwriter and each other Person, if any, who controls the Company or such
Holder or any such underwriter, and their respective directors, officers,
employees, partners, stockholders, agents and representatives, and their
respective Affiliates, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary,
final or summary prospectus contained therein, or any amendment or supplement,
if such statement or alleged statement or omission or alleged omission was made
in reliance upon and in conformity with written information with respect to such
Holder furnished to the Company by such Holder for use in preparation of such
registration statement, preliminary, final or summary prospectus or amendment or
supplement, or a document incorporated by reference into any of the foregoing.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any of the Holders, or any
of their respective controlling Persons, directors, officers, employees,
stockholders, partners, agents and representatives, or any of their respective
Affiliates, and shall survive the transfer of such securities by such Holder.
Notwithstanding the foregoing, the liability of any Holder under this Section
4(b) shall be limited to an amount equal to the amount by which the total price
at which the Registrable Securities were sold by such Holder and distributed to
the public in the offering which gave rise to the liability exceeds the amount
of any damages that such Holder has otherwise been required to pay be reason of
such offering. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include any legal or other fees and expenses reasonably incurred by such party
in connection with any investigation or proceeding.
-10-
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification or contribution may
be made pursuant to this Section 4, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give written notice
to the latter of the commencement of such action or proceeding; provided, that
the failure of the indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding
subdivisions of this Section 4, except to the extent that the indemnifying party
is actually prejudiced by such failure to give notice. In case any such action
or proceeding is brought against an indemnified party, the indemnifying party
shall assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. The indemnified party shall have the right to employ separate
counsel in any such action or 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 unless (i) the indemnifying party has agreed to pay such
fees and expenses or (ii) the indemnifying party shall have failed to assume the
defense of such action or proceeding or to employ counsel reasonably
satisfactory to the indemnified party therein or (iii) the named parties to any
such action or proceeding (including any impleaded party) include both the
indemnifying party and the indemnified party and (x) there are one or more legal
defenses available to the indemnified party which are different from or
additional to those available to the indemnifying party and which result in a
conflict between the indemnifying party and such indemnified party or (y) the
representation of both parties by the same counsel would be inappropriate due to
differing interests between them, in either which case under the preceding
clause (iii), if the indemnified party notifies the indemnifying party in
writing that the indemnified party elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action or proceeding on behalf of the
indemnified party. No indemnifying party will consent to entry of any judgment
or enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation. The
indemnifying party shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys at any time for all indemnified parties, which firm shall be
designated in writing by the indemnified parties.
(d) Contribution. If the indemnification provided for in this
Section 4 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the indemnifying party in lieu of indemnifying such
indemnified party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified party in connection with the actions that
results in such losses, claims, damages, liabilities and expenses, as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and the indemnified parties shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. Notwithstanding the foregoing, no Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities were sold by such Holder and distributed to the
public in the offering that resulted in such losses, claims, damages,
liabilities and expenses exceed the amount of any damages that such Holder has
otherwise been required to pay by reason of any such actions. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include any legal or other fees
and expenses reasonably incurred by such party in connection with any
investigation or proceeding.
-11-
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4(d) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The obligation of each Holder to contribute in respect of any offering of
Registrable Securities is several in the same proportion that the proceeds of
such offering received by such Holder bears to the total proceeds of such
offering and not joint. 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.
If indemnification is available under this Section 4, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 4(a) or (b), as the case may be, without regard to the
relative fault of said indemnifying parties or indemnified party or any other
equitable consideration provided for in this Section 4(d).
(e) Non-Exclusivity. The obligations of the parties under this
Section 4 shall be in addition to any liability which any party may otherwise
have to any other party.
5. Holdback Agreement.
(a) Restrictions on Public Sale by Holders. Each Holder agrees not
to effect any public sale or distribution of Registrable Securities or any
similar security of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, or any securities into which
such securities are convertible or for which such securities are exchangeable or
exercisable, during the 10 days prior to, and during the 90 day period beginning
on, the effective date of any registration statement in which Holders are
participating in connection with an underwritten public offering of the
Registrable Securities (except as part of such registration), if and to the
extent reasonably requested in writing (with reasonable prior notice) by the
lead managing underwriter of the underwritten public offering.
(b) Restrictions on Public Sale by the Company. The Company agrees
not to effect any primary public sale or distribution of any securities similar
to those being registered, or any securities convertible into or exchangeable or
exercisable for such securities, or any securities into which such securities
are convertible or for which such securities are exchangeable or exercisable,
during the 10 days prior to, and the 90 day period beginning on, the effective
date of any registration statement in which Holders are participating in
connection with an underwritten public offering if an to the extent reasonably
requested in writing (with reasonable prior notice) by the lead managing
underwriter of the underwritten public offering.
6. Participation in Underwritten Registrations. No Holder of
Registrable securities may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's securities on the
basis provided in and in compliance with any underwriting arrangements and (b)
complete and executes all questionnaires, appropriate and limited powers of
attorney, escrow agreements, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangements.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Holders of
a majority of the Registrable Securities then outstanding; provided, however,
that no such amendment which would have an adverse effect on any Holder shall be
effective as to such Holder without the written consent of such
-12-
Holder (or if such Holder is not an original Holder hereunder, without the
written consent of at least a majority of the Registrable Securities held by the
original Holder who directly or indirectly transferred shares to such Holder,
together with all other direct or indirect transferees of such original Holder).
Each Holder of Registrable Securities at the time or thereafter outstanding
shall be bound by any consent authorized by this Section 7(a), whether or not
such Registrable Securities shall have been marked to indicate such consent.
(b) Successors, Assigns and Transferees. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors, assigns and transferees.
(c) Notices. Any notice, request, demand, waiver or other
communication required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given (i) when delivered by hand, (ii)
five business days after it is mailed certified or registered mail, return
receipt requested with postage prepaid, (iii) when answered back if sent by
telecopy (with respect confirmed) or (iv) three business days after it is sent
by express delivery service, as follows:
(i) if to the Company, to:
Westinghouse Air Brake Company
1001 Air Brake Avenue
Wilmerding, Pennsylvania 15148
With a copy to:
Xxxx Xxxxx Xxxx & XxXxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. XxXxxxx
Telecopier: 000-000-0000
(ii) if to Harvard, to:
c/o Harvard Private Capital Group, Inc.
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telecopier: 000-000-0000
With a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-00000
Attention: Xxxxx X. Xxxx
Telecopier: 000-000-0000
(iii) if to AIP:
American Industrial Partners
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
-13-
Telecopier: 000-000-0000
With a copy to:
American Industrial Partners
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxx
Telecopier: 000-000-0000
and
Xxxxxx & Xxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxxx, Esq.
Telecopier: 000-000-0000
(iv) if to the Voting Trust, to:
c/o Westinghouse Air Brake Company
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxx Xxxxx Xxxx & XxXxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. XxXxxxx
Telecopier: (000) 000-0000
(v) if to Vestar or Vestar Capital, to:
Vestar Capital Partners, Inc.
Seventeenth Street Plaza
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
-14-
(vi) if to any Pulse Shareholder, to such Holder at such Holder's
address, telephone number of telecopier number set forth in
the Company's records.
All such notices and communications shall be deemed to have been given or made
(1) when delivered by hand, (2) five business days after it is mailed, certified
or registered mail, return receipt requested with postage prepaid, (3) when
answered by if sent by telex, telegram or telecopy (with receipt confirmed) or
(4) three business days after it is sent by express delivery service.
(d) Descriptive Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(e) Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired, it
being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all such counterparts shall together constitute
one and the same instrument.
(g) Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York applicable to
contracts made and to be performed therein. The parties to this Agreement hereby
agree to submit to the jurisdiction of the courts of the State of New York in
any action or proceeding arising out of or relating to this Agreement.
(h) Specific Performance. The parties hereto acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. Accordingly, it is agreed that they shall be entitled
to an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of competent jurisdiction in the United States or any state thereof, in
addition to any other remedy to which they may be entitled at law or equity.
(i) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter. Vestar and the Voting Trust hereby
agree that all rights of either of them under the Existing Registration Rights
Agreement are hereby terminated.
(j) Effectiveness. This Agreement shall become effective upon the
consummation of the SIH Repurchase.
-15-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first written above.
WESTINGHOUSE AIR BRAKE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secrtary
HARVARD PRIVATE CAPITAL HOLDINGS,
INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
VOTING TRUST
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
VESTAR EQUITY PARTNERS, L.P.
By: VESTAR ASSOCIATES, L.P., its
General Partner
By: VESTAR ASSOCIATES
CORPORATION, its General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
VESTAR CAPITAL PARTNERS, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
-16-
AMERICAN INDUSTRIAL PARTNERS
FUND II, L.P.
By: AMERICAN INDUSTRIAL
PARTNERS, II, L.P., its General
Partner
By: AMERICAN INDUSTRIAL
PARTNERS CORPORATION, its
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Chairman
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
-------------------------------------------
Xxxxxx X. Xxxxxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
-------------------------------------------
Xxxxxx X. Xxxxxxxxx, Xx.,
as custodian for Xxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxxxx
-17-
