EXHIBIT 4.1
STOCKHOLDERS AGREEMENT
dated as of June 20, 1996
between
MK RAIL CORPORATION
and
XXXXXXXX XXXXXXX CORPORATION
STOCKHOLDERS AGREEMENT
Stockholders Agreement (this "Agreement") dated as of June 20, 1996,
between MK Rail Corporation, a Delaware corporation (the "Company"), and
Xxxxxxxx Xxxxxxx Corporation, an Ohio corporation ("MKO").
RECITALS
WHEREAS, in connection with the reorganization of Xxxxxxxx Xxxxxxx
Corporation, a Delaware corporation ("MK"), certain creditors of MK and MKO
will acquire restricted shares of Common Stock held by MKO, and the Company
has agreed to provide certain rights to such future holders to cause the
shares so acquired to be registered pursuant to the Securities Act; and
WHEREAS, the Company, at the request of MK and MKO, has, by
execution of a Second Amendment to Rights Agreement (the "Rights Plan Amend-
ments") of even date herewith, made certain amendments to the Rights Agreement
between MK Rail and Chemical Mellon Shareholder Services, L.L.C. dated as of
January 19, 1996, as amended (the "Rights Plan"), in order to facilitate the
obtaining by MK and MKO of the acceptances required to confirm a plan of re-
organization that MK contemplates filing with the Bankruptcy Court pursuant to
which, among other things, the restricted shares of Common Stock are to be
transferred to creditors of MK; and
WHEREAS, the parties hereto desire to set forth the rights of such
future holders and the Company's obligations to cause the registration of the
Registrable Securities pursuant to the Securities Act; and
WHEREAS, the Company, MKO and such future holders have agreed upon
certain matters relating to the governance of the Company and to the Rights
Plan Amendment.
NOW, THEREFORE, in consideration of good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
Section 1. Definitions and Usage. As used in this Agreement.
1.1 Definitions.
"Affiliate" means Affiliate as defined in Rule 12b-2 promulgated by
the Commission under the Exchange Act.
"Agent" means the principal placement agent on an agented placement
of Registrable Securities.
"Bankruptcy Court" shall mean the United States Bankruptcy Court for
the District of Delaware, in which court the Plan has been filed.
"Certificate Amendment" shall have the meaning set forth in Section
9.5.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Common Stock" shall mean (i) the common stock, par value $.01 per
share, of the Company, and (ii) shares of capital stock of the Company issued
by the Company in respect of or in exchange for shares of such common stock in
connection with any stock dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the Company generally of shares
of such common stock.
"Continuously Effective," with respect to a specified registration
statement, shall mean that it shall not cease to be effective and available
for Transfers of Registrable Securities thereunder for longer than either (i)
any ten consecutive business days, or (ii) an aggregate of fifteen business
days during the period specified in the relevant provision of this Agreement.
"Demand Registration Request" shall have the meaning set forth in
Section 2.1(i).
"Demand Registration Statement" shall have the meaning set forth in
Section 2.1(i).
"Demanding Holders" shall have the meaning set forth in Section
2.1(i).
"Distribution Date" shall mean the date MK Rail Common Stock owned
by MKO on the date hereof has been distributed to creditors of MKO in any case
under Title 11 of the United States Bankruptcy Code or through a foreclosure
against MKO.
"Election Request" shall have the meaning set forth in Section 9.6.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Holder" shall mean MKO and the Transferees of the Common Stock held
by MKO or their Transferees in accordance with Section 8.
"Majority Selling Holders" means those Selling Holders whose
Registrable Securities included in a registration represent a majority of the
Registrable Securities of all Selling Holders included therein.
"Market Value" of Registrable Securities as of a given date shall
mean the average closing price for such securities over the ten (10) ten
business days immediately preceding said date as quoted on the NASDAQ National
Market System or such other securities exchange on which said securities are
listed.
"Note Cancellation Agreement" shall refer to the Note Cancellation
and Restructuring Agreement of even date herewith by and among the Company,
MKO and MK.
"Outside Director" shall mean a director of the Company who (i) is
not and has not been employed by MK, MKC or the Company or their respective
subsidiaries in an executive capacity within five years immediately prior to
the annual meeting at which the nominees of the board of directors will be
voted upon; (ii) is not (and is not affiliated with a company or a firm that
is) a significant advisor or consultant to the Company or its subsidiaries;
(iii) is not affiliated with a significant customer or supplier of the Company
or its subsidiaries; (iv) does not have significant personal services
contract(s) with the Company or its subsidiaries; (v) is not affiliated with a
tax-exempt entity that receives significant contributions from the Company or
its subsidiaries; and (vi) is not a spouse, parent, sibling or child or any
person described by (i) through (v) of this definition.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"Piggyback Registration Statement" shall have the meaning set forth
in Section 3.
"Plan" shall mean the plan of reorganization with respect to MK,
which plan of reorganization shall contain substantially the terms set forth
in Exhibit C to the Note Cancellation Agreement and which plan of
reorganization shall not contain any terms or provisions that are inconsistent
with the Note Cancellation Agreement, this Agreement or the terms set forth in
such Exhibit C.
"Register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering by the Commission of effectiveness of such registration statement or
document.
"Registrable Securities" shall mean, subject to Section 8: (i) the
Shares owned by the Holders on any date of determination, (ii) any shares of
Common Stock or other securities issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange by the Company
generally for, or in replacement by the Company generally of, such Shares; and
(iii) any securities issued in exchange for Shares in any merger or
reorganization of the Company; provided, however, that Registrable Securities
shall not include any securities which have theretofore been registered and
sold to the public in a bona fide public offering pursuant to the Securities
Act or which have been sold to the public pursuant to Rule 144 or any similar
rule promulgated by the Commission pursuant to the Securities Act.
"Registrable Securities then outstanding" shall mean, with respect
to a specified determination date, the Registrable Securities owned by all
Holders on such date.
"Registration Expenses" shall have the meaning set forth in Section
6.1.
"Securities Act"k shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Selling Holders" shall mean, with respect to a specified
registration pursuant to this Agreement, Holders whose Registrable Securities
are included in such registration.
"Shares" shall mean the shares of Common Stock acquired by certain
creditors of MK in connection with the reorganization of MK.
"Shelf Registration Statement" shall have the meaning set forth in
Section 2.2.
"Standstill Termination Date" shall have the meaning set forth in
Section 9.2.
"Stockholders Meeting" shall have the meaning set forth in Section
9.7.
"Substantial Stockholder" shall mean any Person beneficially owning
5% or more of the outstanding Common Stock.
"Transfer" shall mean and include the act of selling, giving,
transferring, creating a trust (voting or otherwise), assigning or otherwise
disposing of (other than pledging, hypothecating or otherwise transferring as
security) (and correlative words shall have correlative meanings); provided,
however, that any transfer or other disposition upon foreclosure or other
exercise of remedies of a secured creditor after an event of default under or
with respect to a pledge, hypothecation or other transfer as security shall
constitute a "Transfer." "Transferee" shall mean any Person who acquires
Common Stock pursuant to a Transfer.
"Underwriters Representative" shall mean managing underwriter, or,
in the case of a co-managed underwriting, the lead manager.
"Violation" shall have the meaning set forth in Section 7.1.
1.2 Usage.
(i) References to a Person are also references to its assigns and
successors in interest (by any means whatever, including merger,
consolidation or sale of all or substantially all the assets of such
Person or otherwise, as the case may be).
(ii) References to Registrable Securities "owned" by a Holder shall
include Registrable Securities beneficially owned by such Person but
which are held of record in the name of a nominee, trustee, custodian, or
other agent, but shall exclude shares of Common Stock held by a Holder
(other than the liquidating trust contemplated by the Plan) in a
fiduciary capacity for customers of such Person.
(iii) References to a document are to it as amended, waived and
otherwise modified from time to time and references to a statute or other
governmental rule are to it as amended and otherwise modified from time
to time (and references to any provision thereof shall include references
to any successor provision).
(iv) References to Sections or to Schedules or Exhibits are to
sections hereof or schedules or exhibits hereto, unless the context
otherwise requires.
(v) The definitions set forth herein are equally applicable both to
the singular and plural forms and the feminine, masculine and neuter
forms of the terms defined.
(vi) The term "including" and correlative terms shall be deemed to
be followed by "without limitation" whether or not followed by such words
or words of like import.
(vii) The term "hereof" and similar terms refer to this Agreement as
a whole.
(vii) The "date of" any notice or request given pursuant to this
Agreement shall be determined in accordance with Section 12.2.
Section 2. Demand and Shelf Registration Statements.
2.1 (i) At any time during the period commencing on the date of
the first filing by the Company of its Annual Report on Form 10-K that follows
the effective date of the Plan and ending on the fifth anniversary thereof,
one or more Holders of Registrable Securities may at their option make a
written request (a "Demand Registration Request") to the Company (the
"Demanding Holders") requesting that the Company file with the Commission a
registration statement on an appropriate form under the Securities Act (a
"Demand Registration Statement") to register (subject to Section 2.6) all or
such number of such Demanding Holder's Registrable Securities as the Demanding
Holder shall request in writing; provided, however, that no request may be
made pursuant to this Section 2.1 if (A) within twelve months prior to the
date of such request a Demand Registration Statement pursuant to this Section
2.1 shall have been declared effective by the Commission or (B) the
Registrable Securities that the Demanding Holders request be included in the
Demand Registration Statement do not have a Market Value as of the date the
request is given to the Company of at least $5,000,000. Notwithstanding the
foregoing, in no event shall a Demand Registration Request be effective unless
and until the Registrable Securities that the Demanding Holders request be
included in the Demand Registration and that other Holders request be included
in the Demand Registration pursuant to Section 2.1(iii) hereof have an
aggregate Market Value determined as of the date the last such request is
received of at least $20,000,000. After an effective Demand Registration
Request is made, the Company shall file with the Commission the Demand
Registration Statement. Any Demand Registration Statement shall relate to an
underwritten offering (whether on a "firm," "best efforts" or "all reasonable
efforts" basis or otherwise) or any agented offering. Any Demand Registration
Request made pursuant to this Section 2.1 shall be addressed to the attention
of the Secretary of the Company and shall specify the number of Registrable
Securities to be registered, the intended methods of disposition thereof and
that the request is for a Demand Registration Statement pursuant to this
Section 2.1.
(ii) The Company shall be entitled to postpone for up to 120 days
the filing of any Demand Registration Statement otherwise required to be
prepared and filed pursuant to this Section 2.1 if (A) the Board of Directors
of the Company determines, in its good faith reasonable judgment, that such
registration and the Transfer of Registrable Securities contemplated thereby
would materially interfere with, or require the premature disclosure of, any
financing, acquisition or reorganization involving the Company or any of its
subsidiaries or would otherwise require the premature disclosure of any other
material nonpublic information as to which the Company has a bona fide
business purpose for maintaining its confidentiality and (B) the Company
promptly gives the Demanding Holders notice of such determination (which
notice need not disclose the fact, event or information); provided, however,
that the Company shall not have, within the twelve months prior to the date of
the postponement, postponed pursuant to this Section 2.1(ii) the filing of any
other Demand Registration Statement that was subsequently abandoned because
the Demand Registration Request relating thereto was withdrawn.
(iii) Whenever the Company receives a demand pursuant to Section
2.1(i) to effect the registration of any Registrable Securities, the Company
shall promptly give written notice of such proposed registration to all
Holders. Any such Holder may, within thirty days after receipt of such
notice, request in writing that all of such Holder's Registrable Securities,
or any portion thereof designated by such Holder, be included in the
registration.
2.2 As soon as practicable after the later of (i) the entry by the
Bankruptcy Court of the order approving the assumption of this Agreement and
the transactions contemplated hereby and (ii) July 1, 1996, the Company shall
file with the Commission a registration statement on Form S-3 in accordance
with the Securities Act for an offering on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement"). The Company shall use its reasonable best efforts to have the
Shelf Registration Statement declared effective on the effective date of the
Plan. Subject to compliance with the provisions of Section 5, the Holders
shall be entitled to have all or a portion of such Holders' Registrable
Securities included in the Shelf Registration Statement.
2.3 The Company shall be obligated to effect no more than four
Demand Registration Statements pursuant to this Agreement. For purposes of
the preceding sentence, a Demand Registration Statement shall not be deemed to
have been effected (i) unless a registration statement with respect thereto
has become effective, (ii) if after such registration statement has become
effective, such registration or the related offer, sale or distribution of
Registrable Securities thereunder is interfered with by any stop order,
injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable to any of the
Selling Holders and such interference is not thereafter eliminated, or (iii)
if the conditions to closing specified in any underwriting agreement
containing usual and customary terms entered into in connection with such
registration are not satisfied or waived, other than by reason of a failure on
the part of any of the Selling Holders. The Company's obligation to effect a
given Demand Registration pursuant to Section 2.1 shall be deemed to have been
satisfied upon the earlier of (x) the date as of which all of the Registrable
Securities included therein shall have been disposed of pursuant to the Demand
Registration Statement, and (y) the date as of which such Demand Registration
Statement shall have been Continuously Effective for a period of 90 days.
2.4 Whenever the Company receives a request for a Demand
Registration Statement pursuant to Section 2.1, the Company shall have the
right to register in any such Demand Registration Statement and to include in
any related offering shares of authorized but unissued Common Stock. The
Company may exercise the foregoing option to include additional shares by
written notice delivered to each of the Selling Holders within 30 days
following the Company's receipt of the request for a Demand Registration
Statement pursuant to Section 2.1(i).
2.5 In any Demand Registration Statement, the managing or lead
underwriter or underwriters (for an underwritten offering) or the lead agent
(for an agented offering) shall be a nationally recognized firm selected by
the Majority Selling Holders with the approval of the Company, which approval
shall not be unreasonably withheld.
2.6 Whenever the Company effects a Demand Registration Statement
pursuant to Section 2.1, if the Underwriters' Representative or Agent advises
the Company and each Selling Holder in writing that, in its opinion, the
amount of securities requested to be included in such offering (whether by the
Company or the Selling Holders) exceeds the amount which can be sold in such
offering within a price range acceptable to the Majority Selling Holders, the
securities to be included in such offering and the related registration shall
be reduced in the following order to an amount which can be sold within such
price range: first, the amount of securities, if any, that the Company has
requested be included in the offering and registration shall be reduced until
no such securities are included therein; and second, the amount of Registrable
Securities that the Selling Holders have requested be included in the offering
and registration shall be reduced on a pro rata basis among all Selling
Holders based on the relative number of securities each has requested be
included in such offering.
2.7 Notwithstanding anything in this Agreement to the contrary,
neither MK nor MKO shall have the right to dispose of any Registrable
Securities pursuant to any registration statement effected pursuant to
Sections 2 or 3.
Section 3. Piggyback Registration Statement.
3.1 If at any time the Company proposes to register (including for
this purpose a registration effected by the Company for stockholders of the
Company other than the Holders) equity securities or securities convertible or
exchangeable into equity securities under the Securities Act in connection
with a public offering solely for cash (other than by a registration on Form
S-4 or S-8 or any successor or similar forms or filed in connection with an
exchange offer or any offering of securities solely to the Company's existing
stockholders or otherwise pursuant to a dividend reinvestment plan or a
dividend reinvestment and stock purchase plan, and other than pursuant to
Section 2), the Company shall promptly give each Holder of Registrable
Securities written notice of such registration (a "Piggyback Registration
Statement"). Upon the written request of each Holder given within fifteen
days following the date of such notice, the Company shall cause to be included
in such registration statement and use its reasonable best efforts to be
registered under the Securities Act all the Registrable Securities that each
such Holder shall have requested to be registered; provided, however, that
such right of inclusion shall not apply to any registration statement covering
an underwritten offering of convertible or exchangeable securities or equity
securities other than Common Stock if the Underwriters' Representative or
Agent shall advise the Company in writing (with a copy to each Selling Holder)
that in its opinion, the kind of Registrable Securities requested to be
included in the Piggyback Registration Statement would adversely affect the
offering of the convertible or exchangeable securities or equity securities or
the timing thereof. The Company shall have the absolute right at any time to
withdraw or cease to prepare or file any registration statement for any
offering referred to in this Section 3 without any obligation or liability to
any Holder.
3.2 If the Underwriters' Representative or Agent shall advise the
Company in writing (with a copy to each Selling Holder) that, in its opinion,
the amount of securities requested to be included in such offering (whether by
the Company, the Selling Holders or other selling stockholders) exceeds the
amount which can be sold in such offering within a price range acceptable to
the Company, the securities to be included in such offering and the related
registration shall be reduced in the following order to an amount which can be
sold within such price range: first the amount of securities to be included
in the offering and registration by any selling stockholder other than the
Selling Holders shall be reduced until no such securities are included
therein; second, the amount of Registrable Securities that the Selling Holders
have requested be included in the offering and registration shall be reduced
on a pro rata basis among all Selling Holders based on the relative number of
securities each has requested be included in such offering; and third, the
amount of securities to be included in the offering and registration by the
Company shall be reduced.
3.3 During the term of this Agreement, each Holder shall be
entitled to have its Registrable Securities included in an unlimited number of
Piggyback Registration Statements pursuant to this Section 3.
3.4 If the Company has previously filed a registration statement
with respect to Registerable Securities pursuant to Section 2.1 or pursuant to
this Section 3, and if such previous registration statement has not been
withdrawn or abandoned, the Company will not file or cause to be effected any
other registration of any of its equity securities or securities convertible
or exchangeable into or exercisable for its equity securities under the
Securities Act (except on Form S-8 or any successor form), whether on its own
behalf or at the request of any holder or holders of such securities, until a
period of 180 days has elapsed from the effective date of such a previous
registration statement.
Section 4. Registration Procedures. Whenever required under
Section 2 or Section 3 to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as practicable:
4.1 Prepare and file with the Commission a registration statement
with respect to such Registrable Securities, subject to Section 2.2, and use
the Company's reasonable best efforts to cause such registration statement to
become effective, in each instance giving due regard to the need to prepare
current financial statements, conduct due diligence and complete other actions
that are reasonably necessary to effect a registered public offering;
provided, however, that before filing a registration statement or prospectus
or any amendments or supplements thereto, including documents incorporated by
reference after the initial filing of the registration statement and prior to
effectiveness thereof, the Company shall use its reasonable efforts to furnish
to one firm of legal counsel for the Selling Holders (selected by the Majority
Selling Holders) copies of all such documents in the form substantially as
proposed to be filed with the Commission at least five business days prior to
filing for review and comment by such counsel.
4.2 (i) Use the Company's reasonable best efforts to keep the
relevant registration statement Continuously Effective (x) if a Demand
Registration Statement, for up to 90 days or until such earlier date as of
which all the Registrable Securities under the Demand Registration Statement
shall have been disposed of in manner described in the Demand Registration
Statement, and (y) if a Shelf Registration Statement, subject to the
immediately following sentence, for three years. As soon as reasonably
practicable after the occurrence of any fact or event that makes untrue any
statement of a material fact made in the Shelf Registration Statement or that
requires the making of any additions to or changes in the Shelf Registration
Statement in order to make the statements therein, in light of the
circumstances in which they were made, not misleading, the Company shall
prepare and file a supplement or amendment to the Shelf Registration Statement
or related prospectus, or a document incorporated therein by reference, so
that such Shelf Registration Statement and related prospectus shall not
contain any such untrue statement of a material fact or any such omission of a
material fact; provided, however, that if the Board of Directors of the
Company determines, in its good faith reasonable judgment, that the Transfer
of Registrable Securities pursuant to the Shelf Registration Statement would
materially interfere with, or require the premature disclosure of, any
financing, acquisition or reorganization involving the Company or any of its
subsidiaries or otherwise would require premature disclosure of any other
material nonpublic information as to which the Company has a bona fide
business purpose for maintaining its confidentiality, then for so long as such
circumstances or such business purpose continues to exist (provided that the
number of days of any such suspension may not exceed an aggregate of 120 days
in any calendar year), the Company shall not be required to prepare or file
any such supplement, amendment or document.
(ii) Each Holder agrees by acquisition of a Registrable Security
that, upon receipt of any notice from the Company of the existence of any fact
or event of the kind described in Section 2.1(ii) or 4.2(i) (which notice need
not disclose the fact, event or information), such Holder will forthwith
discontinue the disposition of any Registrable Securities pursuant to the
Shelf Registration Statement until such Holder's receipt of the copies of a
supplemented or amended prospectus as contemplated by Section 4.2(i), or until
it is advised in writing by the Company that the use of the prospectus related
to the Shelf Registration Statement may be resumed, and, has received copies
of any additional or supplemental filings that are incorporated by reference
in such prospectus. If so directed by the Company, each Holder will deliver
to the Company all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities
that was current at the time of receipt of such notice.
(iii) Notwithstanding the foregoing, if, in the case of a Demand
Registration Statement, the filing of a registration statement is postponed as
permitted by Section 2.1(ii), or, in the case of a Shelf Registration
Statement, the preparation and filing of a supplement, amendment or
incorporated document is postponed as permitted by Section 4.2(i) or Section
4.2(ii), the five-year period for filing a Demand Registration Statement or
the three-year period of effectiveness of the Shelf Registration Statement, as
the case may be, shall be extended by the aggregate number of days of such
postponement.
4.3 Subject to Section 4.2(i), prepare and file with the Commission
such amendments, supplements or incorporated documents to such registration
statement and the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement. If the registration statement is for an underwritten
offering, the Company shall amend the registration statement or supplement the
prospectus whenever required by the terms of the underwriting agreement
entered into pursuant to Section 4.6. In the event that any Registrable
Securities included in a registration statement subject to, or required by,
this Agreement remain unsold at the end of the period during which the Company
is obligated to use its reasonable best efforts to maintain the effectiveness
of such registration statement, the Company may file a post-effective
amendment to the registration statement for the purpose of removing such
securities from registered status.
4.4 Furnish to each Selling Holder of Registrable Securities copies
of the registration statement, any pre-effective or post-effective amendment
thereto, the prospectus, including each preliminary prospectus and any
amendments or supplements thereto, in each case in conformity with the
requirements of the Securities Act.
4.5 Use the Company's reasonable best efforts (i) to register and
qualify the securities covered by such registration statement under the
securities or Blue Sky laws of such states or jurisdictions as shall be
reasonably requested by the Underwriters' Representative or Agent (as
applicable, or if inapplicable, the Majority Selling Holders), and (ii) to
obtain the withdrawal of any order suspending the effectiveness of a
registration statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of the offer and transfer of any of the
Registrable Securities in any jurisdiction, at the earliest practicable
moment; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business,
subject itself to taxation or to file a general consent to service of process
in any states or jurisdictions where it is not now so subject.
4.6 In the event of Demand Registration Statement, enter into and
perform the Company's obligations under an underwriting or agency agreement
(including indemnification and contribution obligations of underwriters or
agents), in usual and customary form, with the managing underwriter or
underwriters of or agents for such offering. The Company shall also cooperate
with the Majority Selling Holders and the Underwriters' Representative or
Agent for such offering in the marketing of the Registrable Securities,
including making reasonably available the Company's officers, accountants,
counsel, premises, books and records for such purpose.
4.7 Promptly notify each Selling Holder of any stop order issued or
threatened to be issued by the Commission in connection therewith (and take
all reasonable actions required to prevent the entry of such stop order or to
remove it if entered).
4.8 Make generally available to the Company's security holders an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than 90 days following the end of the 12-month period
beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of each registration statement filed
pursuant to this Agreement.
4.9 Make reasonably available for inspection by any Selling Holder,
any underwriter participating in such offering and the representatives of such
Selling Holder and Underwriter (but not more than one firm of legal counsel to
such Selling Holders), all financial and other information as shall be
reasonably requested by them, and provide the Selling Holder, any underwriter
participating in such offering and the representatives of such Selling Holder
and Underwriter the opportunity to discuss the business affairs of the Company
with its principal executives and independent public accountants who have
certified the audited financial statements included in such registration
statement, in each case to the extent necessary to enable them to exercise
their due diligence responsibility under the Securities Act; provided,
however, that information that the Company determines, in good faith, to be
confidential and which the Company advises such Person in writing, is
confidential shall not be disclosed unless such Person signs a confidentiality
agreement reasonably satisfactory to the Company.
4.10 In the event of a Demand Registration Statement, use the
Company's reasonable best efforts to obtain a "comfort letter" from its
independent public accountants and legal opinions of counsel to the Company
addressed to the Selling Holders, in customary form and covering such matters
of the type customarily covered by such letters and in a form that shall be
reasonably satisfactory to the Majority Selling Holders. The Company shall
furnish to each Selling Holder a signed counterpart of any such comfort letter
or legal opinion. Delivery of any comfort letter shall be subject to the
recipient furnishing such written representations or acknowledgments as are
customarily provided by selling stockholders who receive such comfort letters
under SAS No. 72. Nothing in the immediately preceding sentence shall be
deemed to require a Selling Holder to make representations and warranties if
the Selling Holder is willing to receive a letter in the form to be provided
to selling stockholders not making representations and warranties under SAS
No. 76.
4.11 Provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement.
4.12 Use all reasonable efforts to cause the Registrable Securities
covered by such registration statement, if the Common Stock is then listed on
a securities exchange or included for quotation in a recognized trading
market, to continue to be so listed or included for a reasonable period of
time after the offering.
Section 5. Holders' Obligations.
5.1. It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Agreement with respect to the
Registrable Securities of any Selling Holder of Registrable Securities that
such Selling Holder shall:
(i) furnish to the Company such information regarding such Selling
Holder and its affiliates, the number of Registrable Securities owned and
proposed to be sold by it, the intended method of disposition of such
securities and any other information as shall be required to effect the
registration of such Selling Holder's Registrable Securities, and
cooperate with the Company in preparing such registration statement and
in complying with the requirements of the Securities Act;
(ii) agree to sell their Registrable Securities to the underwriters
at the same price and on substantially the same terms and conditions as
the Company or the other Persons on whose behalf the registration
statement was being filed have agreed to sell their securities, and
execute the underwriting agreement agreed to by the Company and the
Majority Selling Holders and customary custody arrangements, lock-up
letters, indemnities, questionnaires and other documents reasonably
required by the underwriters or agents and agreed to by the Majority
Selling Holders.
5.2. In the event that a Demand Registration Statement or a
Piggyback Registration Statement becomes effective, if and to the extent
requested by the managing underwriter or lead agent for the offering relating
thereto, no Holder shall offer, sell or agree to sell or otherwise dispose of
or transfer any Registrable Securities or securities convertible into or
exchangeable or exercisable for any Registrable Securities (other than, in the
case of the Selling Holders under the Demand Registration Statement or
Piggyback Registration Statement, pursuant to such Demand Registration
Statement or Piggyback Registration Statement, as the case may be), or
exercise any right to register any such securities, during the period
commencing ten days prior to the anticipated effective date of such
registration statement and ending 120 days from the effective date of such
registration statement. In order to enforce the foregoing agreement, the
Company shall be entitled to impose stop-transfer instructions with respect to
the Registrable Securities of each Holder until the end of such period.
Section 6. Expenses of Registration. Expenses in connection with
registrations pursuant to this Agreement shall be allocated and paid as
follows:
6.1 With respect to the Shelf Registration Statement, MKO shall
bear and pay or shall reimburse the Company for, and with respect to each
Demand Registration Statement, the Company shall bear and pay, all of the
expenses incurred in connection with the registration and offering of
Registrable Securities with respect to such Shelf Registration Statement or
Demand Registration Statement, as the case may be, including, but not limited
to, all registration, filing and National Association of Securities Dealers,
Inc. fees, all fees and expenses of complying with securities or blue sky
laws, all word processing and duplicating expenses, messenger and delivery
expenses, the fees and disbursements of counsel for the Company, the fees and
disbursements of the Company's independent public accountants, including the
expenses of "cold comfort" letters required by or incident to such performance
and compliance, and all printing expenses (including the printing of
certificates evidencing the Registrable Securities and the printing of the
registration statement and any related prospectus, or any amendment or
supplement thereto) (collectively, the "Registration Expenses"); provided,
however, that, the Selling Holders shall pay (i) underwriting discounts and
commissions relating to the Registrable Securities sold by them pursuant to
any such registration statement and (ii) all fees and disbursements of counsel
and any other advisors to the Selling Holders. Notwithstanding the foregoing,
in no event shall the obligations of MKO under this Section 6.1 exceed $75,000
in the aggregate. In no event shall MKO be responsible for the expenses of a
Demand Registration Statement. To the extent MKO is not required by this
Section to pay or reimburse the Company for expenses incurred in connection
with a Shelf Registration Statement, those expenses shall be borne and paid by
the Company, except as expressly otherwise provided in the first sentence of
this Section.
6.2 The Company shall bear and pay all Registration Expenses
incurred in connection with any Piggyback Registration Statements pursuant to
Section 3, other than (i) underwriting discounts and commissions relating to
Registrable Securities, (ii) the portion of any filing fees allocable to the
Registrable Securities included in such registration by the Holders and (iii)
the fees and disbursements of any counsel and other advisors to the Selling
Holders (each of which expenses in clauses (i) and (ii) shall be paid on a pro
rata basis by the Selling Holders of Registrable Securities included in such
Piggyback Registration Statement and which expenses in clause (iii) shall be
paid on a pro rata basis by the Selling Holders for which the expenses are
incurred).
Section 7. Indemnification; Contribution. If any Registrable
Securities are included in a registration statement under this Agreement:
7.1 To the extent permitted by applicable law, the Company shall
indemnify and hold harmless each Selling Holder, its directors, officers,
shareholders, employees, investment advisors, agents and Affiliates, either
direct or indirect (each such Affiliate's directors, officers, shareholders,
employees, investment advisors and agents) and each other Person, if any, who
controls such Selling Holder within the meaning of the Securities Act against
any and all losses, claims, damages, liabilities and expenses, including
attorneys' fees and disbursements and expenses of investigation, incurred by
such party pursuant to any actual or threatened action, suit, proceeding or
investigation, to which any of the foregoing Persons may become subject under
the Securities Act, the Exchange Act or other federal or state laws, insofar
as such losses, claims, damages, liabilities and expenses arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein, or any amendments or supplements
thereto, or 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 (collectively, a "Violation"); provided, however, that the
indemnification required by this Section 7.1 shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability or expense if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or expense to the extent that
it arises out of or is based upon a Violation which occurs in reliance upon
and in conformity with written information furnished to the Company by the
indemnified party expressly for use in connection with such registration.
7.2 To the extent permitted by applicable law, each Selling Holder
shall indemnify and hold harmless the Company, its directors, officers,
shareholders, employees, investment advisors, agents and Affiliates, either
direct or indirect (and each such Affiliate's directors, officers,
shareholders, employees, investment advisors and agents) and each other
Person, if any, who controls the Company within the meaning of the Securities
Act, any other Selling Holder and any controlling Person of any such Selling
Holder against any and all losses, claims, damages, liabilities and expenses,
including attorneys' fees and disbursements and expenses of investigation,
incurred by such party pursuant to any actual or threatened action, suit,
proceeding or investigation, to which any of the foregoing Persons may
otherwise become subject under the Securities Act, the Exchange Act or other
federal or state laws, insofar as such losses, claims, damages, liabilities
and expenses arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Selling Holder
expressly for use in connection with such registration statement; provided,
however, that (x) the indemnification required by this Section 7.2 shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or expense if settlement is effected without the consent of the relevant
Selling Holder or Registrable Securities, which consent shall be unreasonably
withheld, (y) in no event shall the amount of any indemnity under this Section
7.2 and of the contribution obligation of a Selling Holder under Section 7.4
exceed the net proceeds from the applicable offering received by such Selling
Holder, and (z) the obligation to provide indemnification hereunder shall be
several, and not joint and several, among the indemnifying parties.
7.3 Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, suit, proceeding,
investigation or threat thereof made in writing for which such indemnified
party may make a claim under this Section 7, such indemnified party shall
deliver to the indemnifying party a written notice of the commencement
thereof. The failure to deliver written notice to the indemnifying party
within a reasonable time following the commencement of any such action, if and
to the extent materially prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified
party under this Section 7 but shall not relieve the indemnifying party of any
liability that it may have to any indemnified party otherwise than pursuant to
this Section 7. Any fees and expenses incurred by the indemnified party
(including any fees and expenses incurred in connection with investigating or
preparing to defend such action or proceeding) shall be paid to the
indemnified party, as incurred, within thirty days of written notice thereof
to the indemnifying party (regardless of whether it is ultimately determined
that an indemnified party is not entitled to indemnification hereunder). Any
such indemnified party shall have the right to employ separate counsel in any
such action, claim or proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be the expenses of such
indemnified party unless (i) the indemnifying party shall have failed to
promptly assume the defense of such action, claim or proceeding or (ii) the
named parties to any such action, claim or proceeding (including any impleaded
parties) include both such indemnified party and the indemnifying party, and
such indemnified party shall have been advised by its counsel that there may
be one or more legal defenses available to it which are different from or in
addition to those available to the indemnifying party and that the assertion
of such defenses would create a conflict of interest such that counsel
employed by the indemnifying party could not represent the indemnified party
(in which case, if such indemnified party notifies the indemnifying party in
writing that it 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, claim or proceeding on behalf of such indemnified
party; it being understood, however, that the indemnifying party shall not, in
connection with any one such action, claim or proceeding or separate but
substantially similar or related actions, claims or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (together with appropriate local counsel) at any time for all such
indemnified parties, unless the indemnified party shall have been advised by
its counsel that a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such action,
claim or proceeding such that the counsel could not represent the indemnified
party and any other of such indemnified parties, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels). No indemnifying party shall be liable to an
indemnified party for any settlement of any action, proceeding or claim
without the written consent of the indemnifying party, which consent shall not
be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to in this
Section 7:
(i) 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 parties in
connection with the actions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified parties shall be determined by reference to, among other
things, whether any Violation has been committed 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 Violation. The amount paid or
payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 7.1 and Section 7.2, any
legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 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 Section
7.4(i). 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.
7.5. The obligations of the Company and the Selling Holders of
Registrable Securities under this Section 7 shall survive the completion of
any offering of Registrable Securities pursuant to a registration statement
under this Agreement.
Section 8. Transfer of Common Stock. Notwithstanding anything in
this Agreement to the contrary, no Holder may Transfer any shares of Common
Stock to any Person, except as set forth in the last paragraph of this Section
8, unless prior to any such Transfer such Person has executed an agreement (in
the form of Exhibit A hereto) to be bound by the provisions of this Agreement.
The Company shall place the following legend on any certificate representing
shares of Common Stock held by a Holder:
"This security is subject to certain restrictions on
transfer contained in a Stockholders Agreement dated as of
____________, 1996 between MK Rail Corporation and
Xxxxxxxx Xxxxxxx Corporation to which the holder of this
certificate is bound, a copy of which agreement is on file
with the Secretary of MK Rail Corporation."
In order to enforce the foregoing transfer restriction, without
limiting any other rights or remedies available to the Company, the Company
shall be entitled to impose stop-transfer instructions with respect to the
Registrable Securities of each Holder. The foregoing transfer restrictions
and legend shall be removed in connection with any sale of Common Stock to the
public pursuant to an effective registration statement or pursuant to Rule 144
or any similar rule promulgated by the Commission under the Securities Act, in
each case so long as the specific identities of the Transferees are not known
to the Holders selling such shares prior to such sale.
Section 9. Corporate Governance Agreement.
Section 9.1. Until either the second anniversary of the
Distribution Date (or, if an effective Election Request, as defined in Section
9.6 hereof, is made and the Stockholders Meeting, as defined in Section 9.7
hereof, is held prior thereto, the date of the Stockholders Meeting), each
Holder (i) shall vote all of its shares of Registrable Securities and any
other voting securities of the Company over which such Holder exercises voting
power (or execute written consents in lieu of meetings) in favor of the
election of the Company's nominees for director and against the removal of any
of the Company's directors (other than a removal for cause) at any meeting of
stockholders or in any action by written consent and (ii) shall take all other
necessary or desirable actions within such Holder's control (including, but
not limited to, attendance at annual or special stockholder meetings of the
Company in person or by proxy for purposes of obtaining a quorum) to elect
such nominees and to vote against such removal of any of the Company's
directors; provided, however, that the total number of directors on the
Company's Board of Directors shall not be fewer than seven and a majority of
such directors shall at all times consist of Outside Directors.
Notwithstanding the foregoing, a Holder shall not be required to vote any
voting securities of the Company over which such Holder exercises voting power
that are not Registrable Securities (or execute written consent sin lieu of
meetings with respect to such voting securities) as otherwise required by this
Section to the extent the voting securities are held or controlled by the
Holder as an agent, custodian, trustee or executor, in all cases for or on
behalf of parties that are not Holders of Registrable Securities or their
Affiliates or associates (as defined in the rules promulgated under the
Exchange Act), or are controlled by the Holder as an investment advisor for an
investment company registered under the Investment Company Act of 1940, as
amended, or as an investment advisor for any other person or group; provided,
that in all cases, the arrangement whereby the Holder owns or controls the
voting securities has not been entered into for the purpose of circumventing
this Section; and further provided, in the case of securities controlled by
the Holder as an investment advisor for a person or group that is not an
investment company registered under the Investment Company Act, that no Holder
or Holders has a direct economic beneficial interest in the person or group
for which the Holder so acts as an investment advisor.
9.2. Without the prior written consent of the Company, until either
(i) ninety (90) days prior to the scheduled date of the Stockholders Meeting
(if an effective Election Request is made pursuant to Section 9.6 hereof) or
(ii) the second anniversary of the Distribution Date (if no effective Election
Request is made) (in either case, the "Standstill Termination Date"), no
Holder may (i) solicit proxies (as such terms are defined in Rule 14a-1 under
the Exchange Act), whether or not such solicitation is exempt under 14a-2
under the Exchange Act, with respect to any matter from holders of any shares
of common or preferred stock of the Company, or any securities convertible
into or exchangeable for or exercisable (whether currently or upon the
occurrence of any contingency) for the purchase of any such capital stock, or
make any communication exempted from the definition of solicitation by Rule
14a-1(l)(2)(iv) under the Exchange Act, or (ii) initiate, or induce or attempt
to induce any other Person or group (as defined in Section 13(d)(3) of the
Exchange Act) to initiate, any stockholder proposal or tender offer for
securities of the Company or any subsidiary thereof, any change of control of
the Company or any subsidiary thereof or the convening of a stockholders'
meeting of the Company or any subsidiary thereof or (iii) otherwise seek or
propose (or request permission to propose) to influence or control the
management or policies of the Company or any subsidiary thereof. Nothing
herein shall be deemed to apply to a Holder to the extent the Holder is acting
solely in its capacity as an agent, custodian, trustee or executor holding
securities that are not Registrable Securities for persons that are not
Holders or Affiliates of Holders, provided that the Holder's actions are (a)
at the direction of a person or persons that are not Holders that are the
beneficial owners of the securities so held by the Holder or (b) arise from
the fiduciary duties of the Holder acting in such capacity ascertained in good
faith after consulting with and based on advice of counsel as described in
reasonable detail in a written notice given the Company at least thirty (30)
days prior to taking such action; and further provided that in all cases the
arrangement whereby the Holder holds the securities has not been entered into,
and the action by the Holder has not been taken, for the purpose of
circumventing this Section.
9.3. Notwithstanding anything herein to the contrary, the
provisions of Sections 9.1 and 9.2 hereof shall terminate at such time prior
to the second anniversary of the Distribution Date, if ever, that all of the
Registrable Securities held by all Holders constitutes less than 15% of the
outstanding Common Stock.
9.4. For so long as the provisions of Section 9.1 hereof are in
force and effect, the Company shall not amend the Rights Plan (i) to change
the percentage used in the definition of "Acquiring Person" therein so that it
is less than fifteen percent (15%) or (ii) in any other manner that would
deprive the Holders of the Registrable Securities of the intended benefits of
the Rights Plan Amendment.
9.5. At the first annual meeting of the stockholders of the Company
scheduled to occur at least seventy-five (75) days after the effective date of
this Agreement, the Board of Directors of the Company shall propose to the
stockholders of the Company, shall recommend approval of, and shall solicit
proxies voting to approve an amendment (the "Certificate Amendment") to the
Amended and Restated Certificate of Incorporation of the Company, as amended,
that, if adopted and approved by the requisite vote of the stockholders of the
Company, would amend the first sentence of Section 3 of the Seventh Article
thereof in its entirety so it states as follows:
Subject to the rights, if any, of the holders of any series of
Preferred Stock to elect additional directors under circumstances
specified in a Preferred Stock Designation, newly created
directorships resulting from any increase in the number of Directors
and any vacancies on the Board resulting from death, resignation,
disqualification, removal or other cause, will be filled solely by
the affirmative vote of the majority of the remaining Directors then
in office, even though less than a quorum of the Board, or by a sole
remaining Director; provided, however, that at the sole option of
the Board, effected by resolution of the Board of Directors, one or
more such vacancies or newly created directorships may be filled by
the stockholders at a meeting of the stockholders called by the
Board of Directors.
If the Certificate Amendment is effectively adopted and approved by the
stockholders of the Company, the Board of Directors shall make a conforming
amendment to the first sentence of By-Law 11 of the By-Laws of the Company.
9.6. The Holders shall have the right at their option to request
that the Company hold a meeting of the stockholders as provided herein by
delivery of a written request (the "Election Request") to the Secretary of the
Company at its principal executive offices not more than one hundred twenty
(120) nor less than ninety (90) days prior to the second anniversary of the
Distribution Date, which Election Request shall identify each of the Holders
making the Election Request and shall include the information they would be
required to give under By-Law 13 of the By-Laws of the Company as in effect on
the date hereof as if they were making nominations for positions as directors
at an annual meeting of the stockholders of the Company. An Election Request
shall be ineffective if it has not been executed by Holders owning Registrable
Securities constituting at least fifteen percent (15%) of the outstanding
Common Stock of the Company as of the ninetieth (90th) day prior to the second
anniversary of the Distribution Date and shall cease to be effective if prior
to the second anniversary of the Distribution Date the Holders executing the
Election Request cease to own Registrable Securities constituting at least
fifteen percent (15%) of the outstanding Common Stock of the Company. If no
effective Election Request is delivered to the Secretary of the Company at the
Company's principal executive offices not more than one hundred twenty (120)
nor less than ninety (90) days prior to said second anniversary of the
Distribution Date or if, prior to the second anniversary of the Distribution
Date, the Election Request ceases to be effective, the Holders shall have no
further rights under this Section.
9.7. Provided the Certificate Amendment has been adopted and
approved, upon receipt of an effective Election Request, unless and until it
becomes ineffective, the Board of Directors of the Company shall call a
meeting of stockholders of the Company to be held as closely as practicable to
the second anniversary of the Distribution Date (which meeting may be the
annual meeting of the stockholders) (the "Stockholders Meeting"), at which
meeting the stockholders of the Company shall be entitled to vote to fill
vacancies and/or newly-created positions on the Board of Directors of the
Company, which vacancies and/or newly-created positions, when filled, will
constitute a majority of the Company's Board of Directors.
9.8. Nothing in Sections 9.6 or 9.7 hereof shall be deemed to
amend, modify or waive any provisions of the By-Laws of the Company,
including, without limitation, those regarding the manner in which
stockholders of the Company may make proposals or nominations at meetings of
such stockholders, all of which shall continue to be in full force and effect
with respect to the Stockholders Meeting, if it is held. The provisions of
By-Law 13 of the Company's By-Laws shall be in full force and effect with
respect to all nominations to fill vacancies at the Stockholders Meeting, if
it is held.
Section 10. Amendment, Modification and Waivers; Further
Assurances.
10.1. This Agreement may be amended with the consent of the
Company, 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 of Holders owning Registrable
Securities possessing a majority in number of the Registrable Securities then
outstanding to such amendment, action or omission to act.
10.2. No waiver of any terms or conditions of this Agreement shall
operate as a waiver of any other breach of such terms and conditions or any
other term or condition, nor shall any failure to enforce any provision hereof
operate as a waiver of such provision or of any other provision hereof. No
written waiver hereunder, unless it by its own terms explicitly provides to
the contrary, shall be construed to effect a continuing waiver of the
provisions being waived and no such waiver in any instance shall constitute a
waiver in any other instance or for any other purpose or impair the right of
the party against whom such waiver is claimed in all other instances or for
all other purposes to require full compliance with such provision.
10.3. Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party
hereto may reasonably require in order to effectuate the terms and purposes of
this Agreement.
Section 11. Assignment; Benefit. This Agreement and all of the
provisions hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, permitted assigns, executors,
administrators or successors; provided, however, that except as specifically
provided herein with respect to certain matters, neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned or
delegated by the Company without the prior written consent of Holders owning
Registrable Securities possessing a majority in number of the Registrable
Securities then outstanding on the date as of which such delegation or
assignment is to become effective. A Holder may Transfer its rights hereunder
to a successor in interest to the Registrable Securities owned by such
assignor only as permitted by Section 8.
Section 12. Miscellaneous.
12.1. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
12.2. Notices. All notices and requests given pursuant to this
Agreement shall be in writing and shall be made by hand-delivery, first-class
mail (registered or certified, return receipt requested), confirmed facsimile
or overnight air courier guaranteeing next business day:
(a) If to MK Rail, to:
MK Rail Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Chairman
With a copy to:
Xxxxxxx X. Xxxxx, Esquire
Doepken Keevican & Xxxxx
37th Floor, USX Tower
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(b) If to MKO or MKC, to:
Xxxxxxxx Xxxxxxx Corporation
000 Xxxx Xxxxxxxxx
Xxxxx, Xxxxx
Attention: President
With a copy to:
Xxxxxx Xxxx Xxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
Suite 4600
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
(c) and if to any other Holder, to:
the address set forth in the relevant agreement in the form of
Exhibit A whereby such party became bound by the provisions of
this Agreement.
Except as otherwise provided in this Agreement, the date of each such notice
and request shall be deemed to be, and the date on which each such notice and
request shall be deemed given shall be: at the time delivered, if personally
delivered or mailed; when receipt is acknowledged, if sent by facsimile; and
the next business day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next business day delivery.
12.3. Entire Agreement; Integration. This Agreement supersedes all
prior agreements between or among any of the parties hereto with respect to
the subject matter contained herein, and this agreement embodies the entire
understanding among the parties relating to such subject matter.
12.4. Injunctive Relief. Each of the parties hereto acknowledges
that in the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each
of the parties therefore agrees that in the event of such a breach hereof the
aggrieved party may elect to institute and prosecute proceedings in any court
of competent jurisdiction to enforce specific performance or to enjoin the
continuing breach hereof. By seeking or obtaining any such relief, the
aggrieved party shall not be precluded from seeking or obtaining any other
relief to which it may be entitled.
12.5. Section Headings. Section headings are for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement.
12.6. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be
on the same counterpart.
12.7. Filing. A copy of this Agreement and of all amendments
thereto shall be filed at the principal executive office of the Company with
the Secretary of the Company.
12.8. Termination. This Agreement may be terminated at any time by
a written instrument signed by the parties hereto. Unless sooner terminated
in accordance with the immediately preceding sentence, the parties'
obligations under this Agreement (other than Section 7 hereof) shall terminate
in their entirety on the fifth anniversary of the Distribution Date.
12.9. Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, the successful party shall be
entitled to recover reasonable attorneys' fees (including any fees incurred in
any appeal) in addition to its costs and expenses and any other available
remedy.
12.10. No Third Party Beneficiaries. Nothing herein expressed or
implied is intended to confer upon any person, other than the parties hereto
or their respective permitted assigns, successors, heirs and legal
representatives and other than parties entitled to indemnification under
Section 7 hereof, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first written above.
MK RAIL CORPORATION
By:_________________________
Xxxx X. Xxxx, Chairman
XXXXXXXX XXXXXXX CORPORATION
By:_________________________
Name:
Title:
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first written above.
MK RAIL CORPORATION
By:_________________________
Xxxx X. Xxxx, Chairman
XXXXXXXX XXXXXXX CORPORATION
By:_________________________
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice
President, Chief
Legal Officer and
Secretary
EXHIBIT A
AGREEMENT TO BE BOUND
BY THE STOCKHOLDERS AGREEMENT
The undersigned, being the proposed transferee of ______ shares of
the common stock, $.01 par value per share (the "Common Stock"), of MK Rail
Corporation, a Delaware corporation (the "Company"), as a condition to the
receipt of such Common Stock, acknowledges that matters pertaining to the
registration, voting and transfer of such Common Stock is governed by the
Stockholders Agreement dated as of __________, 1996 (the "Agreement")
initially among the Company and Xxxxxxxx Xxxxxxx Corporation, an Ohio
corporation, and the undersigned hereby (1) acknowledges receipt of a copy of
the Agreement, and (2) agrees to be bound as a Holder by the terms of the
Agreement, as the same has been or may be amended from time to time.
Agreed to this ___ day of _____________, _____________.
__________________________
_________________________*
_________________________*
*Include address for notices.
