EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made as of the 9th day
of April, 2007 by and between Tecumseh Products Company, a Michigan corporation
(the "Company") and Tricap Partners II L.P., a Delaware limited partnership (the
"Investor").
WITNESSETH:
WHEREAS, Tricap Partners LLC ("Tricap I") and the Xxxxxxx Foundation, a
Michigan nonprofit corporation (the "Foundation"), previously entered into the
Class A Option Agreement dated November 1, 2006, as amended (the "Foundation A
Option"), pursuant to which Tricap I was granted the option to purchase 331,347
shares of Class A Common Stock (the "Foundation Class A Shares");
WHEREAS, Tricap I and the Foundation previously entered into the Class B
Option Agreement dated November 1, 2006 (the "Foundation B Option"), pursuant to
which Tricap I was granted the option to purchase 500,000 shares of Class B
Common Stock (the "Foundation Class B Shares");
WHEREAS, Tricap I, the Xxx X. Xxxxxxx and Xxxxx X. Xxxxxxx Trusts u/a/d
February 26, 1949 and February 24, 1956 f/b/o Xxxxxxx Xxxxxxx and his
descendants (a/k/a Xxx X. Xxxxxxx and Xxxxx X. Xxxxxxx Trust u/a/d February 26,
1949 and February 24, 1956 f/b/o Xxxx X. Xxxxxxx and his descendants and Xxx X.
Xxxxxxx and Xxxxx X. Xxxxxxx Trust u/a/d February 26, 1949 and February 24, 1956
f/b/o Xxxx Xxxxxxx and her descendants) (the "Trusts") previously entered into
the Class A Option Agreement dated November 1, 2006, as amended (the "Trust
Option"), pursuant to which Tricap I was granted the option to purchase 168,653
shares of Class A Common Stock (the "Trust Class A Shares");
WHEREAS, Tricap I has previously transferred the Foundation A Option, the
Foundation B Option and Trust Option to the Investor;
WHEREAS, concurrently with the execution of this Agreement, the Company and
the Investor, as lender thereunder, are entering into that certain Amendment No.
2 to Amended and Restated Second Lien Credit Agreement (the "Amendment");
WHEREAS, concurrently with the execution of this Agreement, the Company is
granting a Warrant to Purchase Class A Common Stock (the "Warrant") to Investor
pursuant to which the Investor will have the right, in accordance with the terms
and subject to the conditions of the Warrant, to purchase 1,390,944 shares of
Class A Common Stock (the "Warrant Shares"); and
WHEREAS, the execution and delivery of this Agreement is a condition to the
closing of the transactions contemplated by the Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby agree
as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings
ascribed to them below:
"Affiliate" (i) means, with respect to any Person, any other Person
directly or indirectly controlling or that is controlled by or is under
common control with such Person, each officer, director, general partner or
joint-venturer of such Person, and each Person that is the beneficial owner
of 5% or more of any class of Voting Stock of such Person. For the purposes
of this definition, "control" means the possession of the power to direct
or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or
otherwise and (ii) with respect to any individual, shall also mean the
spouse, sibling, child, step-child, grandchild, niece, nephew or parent of
such Person, or the spouse thereof.
"Class A Common Stock" means the Class A Common Stock, $1.00 par value
per share, of the Company and any equity securities issued or issuable with
respect to the Class A Common Stock in connection with a reclassification,
recapitalization, merger, consolidation or other reorganization.
"Class B Common Stock" means the Class B common stock, par value $1.00
per share, of the Company and any equity securities issued or issuable with
respect to the Class B Common Stock in connection with a reclassification,
recapitalization, merger, consolidation or other reorganization.
"Common Stock" means Class A Common Stock and Class B Common Stock.
"Conversion Shares" means the shares of Common Stock issued or
issuable upon exercise of rights under any or all of the Foundation A
Option, the Foundation B Option, the Trust Option or the Warrant.
"Effective Time" means the date on which the SEC declares the
Registration Statement effective or on which the Registration Statement
otherwise becomes effective.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means any holder (including Investor, its assigns or any
assigns of a Holder) of Registrable Securities, the Foundation A Option,
the Foundation B Option, the Trust Option or the Warrant.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivisions thereof.
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"Prospectus" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that
discloses information previously omitted from a prospectus filed as part of
an effective Registration Statement in reliance upon Rule 430A under the
Securities Act) included in the Registration Statement, as amended or
supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by the
Registration Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such
prospectus and all documents filed after the date of such prospectus by the
Company under the Exchange Act, as amended, and incorporated by reference
therein.
"Registrable Securities" means any Conversion Shares owned by the
Investor and shares of Common Stock issued or issuable, directly or
indirectly, with respect to the Common Stock referenced above by way of
stock dividend, stock split or combination of shares. 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 been declared effective under the Securities Act
and such securities shall have been disposed of in accordance with such
registration statement, or (ii) such securities shall have been sold (other
than in a privately negotiated sale) pursuant to Rule 144 (or any successor
provision) under the Securities Act.
"Registration Statement" means a registration statement of the Company
filed under the Securities Act covering the Registrable Securities,
including the Prospectus contained therein, any amendments and supplements
to such registration statement, including post-effective amendments, and
all exhibits and all material incorporated by reference in such
registration statement, including, without limitation, a "shelf"
registration statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar
rule that may be adopted by the SEC, filed by the Company pursuant to the
provisions of Section 2 of this Agreement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
2. REGISTRATION RIGHTS.
2.1 Piggyback Registrations.
(a) Piggyback Registrations. If, at any time, the Company
proposes or is required to register any of its equity securities under
the Securities Act (other than pursuant to registrations on Form S-4
or Form S-8 or such form or similar form(s) solely for registration of
securities in connection with an employee benefit plan or dividend
reinvestment plan or a merger, consolidation or acquisition) on a
registration statement on Form S-1, Form S-2 or Form S-3 (or an
equivalent general registration form then in effect), whether or not
for its own account, the Company shall give prompt prior written
notice (which shall include
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the number of shares the Company or other holders propose to register
and, if known, the name of the proposed underwriter) of its intention
to do so to the Investor and each Holder. Upon the written request of
any Holder, made within 20 days following the receipt of any such
written notice (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Holder and
the intended method of distribution thereof), the Company shall use,
subject to Sections 2.1(b) and 2.6 hereof, its best efforts to cause
all such Registrable Securities to be registered under the Securities
Act and included in the securities to be covered by the registration
statement proposed to be filed by the Company (a "Piggyback
Registration"). There is no limitation on the number of such Piggyback
Registrations pursuant to the preceding sentence which the Company is
obligated to effect. No registration effected under this Section
2.1(a) shall relieve the Company of its obligations to effect Demand
Registrations or registrations pursuant to Section 2.2 hereof.
(b) Abandonment or Delay. If, at any time after giving written
notice of its intention to register any equity securities and prior to
the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not
to register or to delay registration of such equity securities, the
Company shall give written notice of such determination to the Holders
and (i) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Securities in
connection with such abandoned registration, without prejudice,
however, to the rights of the Investor and Holders with respect to
subsequent Piggyback Registrations under this Section 2.1 or Demand
Registrations under Section 2.2, and (ii) in the case of a
determination to delay registration of such equity securities, shall
be permitted to delay the registration of the Registrable Securities
that any Holder had requested to be registered in connection with such
delayed registration for the same period as the delay in registering
such other equity securities.
(c) The Holders' Right to Withdraw. Any Holder shall have the
right to withdraw its request for inclusion of its Registrable
Securities in any registration statement pursuant to this Section 2.1
by giving written notice to the Company of its request to withdraw;
provided, however, that (i) such request must be made in writing prior
to the earlier of the execution of the underwriting agreement or the
execution of the custody agreement with respect to such registration
and (ii) such withdrawal shall be irrevocable and, after making such
withdrawal, such Investor shall no longer have any right to include
Registrable Securities in the registration as to which such withdrawal
was made, without prejudice, however, to the rights of such Holder
with respect to subsequent Piggyback Registrations under this Section
2.1 or Demand Registrations under Section 2.2 of this Agreement.
2.2 S-3 Registrations.
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(a) S-3 Registrations. If at any time and for so long as the
Investor or any Holder owns beneficially or of record any Registrable
Securities, the Foundation A Option, the Foundation B Option, the
Trust Option or the Warrant, the Company shall, upon the written
request (hereinafter an "S-3 Registration Request") of the Investor or
any Holder, the Company shall prepare and file a Registration
Statement on Form S-3 under the Securities Act, pursuant to Rule 415
under the Securities Act, covering the resale from time to time, of
the number of shares of Registrable Securities as such Holders shall
request, provided, however, that the aggregate proposed offering price
of the Registrable Securities is at least $1,000,000, and the Company
shall use its reasonable best efforts to have the Registration
Statement declared effective as soon as practicable thereafter (a
"Demand Registration"). There is no limitation on the number of Demand
Registrations pursuant to this Section 2.2 that the Company is
obligated to effect.
(b) Registration. The Company shall, as expeditiously as possible
following an S-3 Registration Request, give written notice of such S-3
Registration Request to all other Holders. In the event that Form S-3
is not available for the registration of the resale of Registrable
Securities hereunder, the Company shall use all reasonable best
efforts to enable it to use Form S-3. If the Company is unable to
qualify for Form S-3 after taking such efforts, the Company shall
fulfill its obligations hereunder on such other available form of
Registration Statement reasonably acceptable to the requesting
Holders.
(c) Postponement. The Company shall be entitled to postpone for
up to 30 consecutive days in any calendar year (or 60 days in the
aggregate in any calendar year) (the "Maximum Delay Period") the
filing of any Registration Statement required to be prepared and filed
by it pursuant to this Section 2.2 if (i) the Company is in possession
of material non-public information the disclosure of which would have
a material adverse effect on the business, operations, prospects,
condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole or (ii) the Board of Directors of the
Company determines in good faith that a delay in the effectiveness of
the Registration Statement, or the Registration Statement ceasing to
be effective or a Prospectus thereunder ceasing to be usable, as the
case may be, is appropriate due to the occurrence or existence of any
material pending corporate development with respect to the Company
(each of (i) and (ii) being a "Delay Condition"). The Delay Conditions
shall be deemed to no longer exist if (x) in the case of clause (i)
above, the Company is no longer in possession of such material
non-public information or the Board of Directors of the Company
determines in good faith that the disclosure of such material
information would not be prejudicial to or contrary to the interest of
the Company and (y) in the case of clause (ii) above, the Board of
Directors of the Company determines in good faith that such delay or
cessation is no longer appropriate. The Company shall give the Holders
immediate notice when a Delay Condition is deemed to no longer exist.
If the Company shall so postpone the filing of a registration
statement, the Holders shall have the right to withdraw the applicable
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S-3 Registration Request by giving written notice to the Company
within 20 days after receipt of the notice of postponement from the
Company. The Company may not postpone the filing of any registration
statement more than once in any given calendar year.
(d) Notice to Holders. Immediately following receipt of any S-3
Registration Request pursuant to Section 2.2(a), the Company shall
promptly notify all Holders from whom such S-3 Registration Request
has not been received and, as soon thereafter as practicable, shall
file a Registration Statement with the SEC and use all reasonable best
efforts to have such Registration Statement declared effective under
the Securities Act as soon as practicable, so as to permit the public
sale in accordance with the method of disposition specified in such
S-3 Registration Request (such method of disposition shall be as
requested by such Holders of a majority of Registrable Securities
included in such S-3 Registration Request received by the Company) of
the number of shares of Registrable Securities specified in such S-3
Registration Request (and in all requests for registration received by
the Company from other Holders within twenty (20) days after the
giving of such notice by the Company). If such method of disposition
shall be an underwritten public offering, subject to the covenants,
terms and conditions herein, the Company shall designate the managing
underwriter of such offering, following consultation and subject to
the approval of the Holders of a majority of the Registrable
Securities to be included in such offering, which approval shall not
be unreasonably withheld or delayed. All Holders providing notice to
the Company pursuant to the foregoing must participate in such
underwriting and shall enter into an underwriting agreement mutually
agreeable to the underwriter or underwriters selected by the Company
and each selling Holder, it being understood that if the Investor or a
selling Holder disapproves of the terms of any such underwriting, the
Investor or such selling Holder may elect to withdraw therefrom by
written notice to the Company and the managing underwriter in which
case the Company shall have no liability for damages to the Investor
or any other selling Holder with respect to such inability to reach
agreeable terms with the underwriter(s); provided however that such
withdrawal will not relieve the Company of its registration
obligations hereunder nor waive the right of a Holder to enforce such
obligations. Any Registrable Securities or other securities excluded
or withdrawn from such underwriting shall be withdrawn from such
registration. The Company's registration obligation hereunder shall be
deemed satisfied only when a Registration Statement(s) covering all
shares of Registrable Securities specified in notices received as
aforesaid, for sale in accordance with the method of disposition
specified by the requesting Holders, shall have become effective and,
if such method of disposition is a firm commitment underwritten public
offering, all such shares shall have been sold pursuant thereto.
(e) Ongoing Obligations. The Company shall use all reasonable
best efforts:
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(i) to keep the Registration Statement continuously
effective in order to permit the Prospectus to be usable by
holders for resales of Registrable Securities until the sale
under the Registration Statement of all the Registrable
Securities registered thereunder (such period being referred to
herein as the "Effectiveness Period"); and
(ii) after the Effective Time and during the Effectiveness
Period, promptly upon the request of any Holder, to take any
action reasonably necessary to enable such Holder to use the
Prospectus for resales of Registrable Securities, including
without limitation any action necessary to identify such holder
as a selling stockholder in the Registration Statement; provided,
however, that nothing in this subparagraph shall relieve such
Holder of the obligation to return a completed and signed
questionnaire to the Company relating to such Holder in
connection with the Registration Statement.
2.3 Cutbacks; Priority.
(a) Cutbacks. If the managing underwriter of any underwritten
offering pursuant to Section 2.1 shall advise the Holders that the
Registrable Securities covered by the registration statement cannot be
sold in such offering within a price range acceptable to the Holders
of a majority of the Registrable Securities, then such Holders shall
have the right to notify the Company in writing that it has determined
that the registration statement be abandoned or withdrawn, in which
event the Company shall abandon or withdraw such registration
statement.
(b) Priority in Requested Registrations. If the managing
underwriter of a registration effected pursuant to Section 2.1 of this
Agreement advises the Company in writing that, in its opinion, the
number of securities requested to be included in such registration
(including securities of the Company which are not Registrable
Securities) exceeds the number which can be sold in such offering
without having an adverse effect on such offering as contemplated by
the Holders participating in the registration (including the price at
which such Holders propose to sell such Registrable Securities), the
Company will: first reduce on a pro rata basis any securities proposed
to be included in the registration by persons (other than the Company)
other than the Holders; second, if required, reduce on a pro rata
basis all Registrable Securities proposed to be included in the
registration among the Holders participating in the registration; and
third, if required, reduce on a pro rata basis any securities of the
Company that the Company had proposed to sell in such registration.
2.4 Registration Procedures. If and whenever the Company is required
by the provisions of this Agreement to use its reasonable best efforts to
effect or cause the registration of any Registrable Securities under the
Securities Act, the Company shall, as expeditiously as possible:
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(a) prepare and file with the SEC a Registration Statement on an
registration form of the SEC in accordance herewith for the
disposition of such Registrable Securities in accordance with the
intended method of disposition thereof, which form (i) shall be
selected by the Company in accordance with the terms hereof and (ii)
shall, in the case of a shelf registration, be available for the sale
of the Registrable Securities by the Holders and such Registration
Statement shall comply as to form in all material respects with the
requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith, and the Company
shall use its best efforts to cause such Registration Statement to
become and remain effective for the Effectiveness Period;
(b) furnish to each participating Holder and their counsel, no
fewer than five (5) business days prior to the initial filing of the
Registration Statement, a copy of such Registration Statement, and
shall furnish to such Holders and their counsel, no fewer than two (2)
business days prior to the filing of any amendment or supplement to
the Registration Statement or the Prospectus, a copy of such amendment
or supplement and shall use all reasonable best efforts to reflect in
each such document when so filed with the SEC such comments as such
Holders and their such counsel reasonably may propose; provided,
however, that the Company shall make the final decision as to the
content of each such document. If any such Registration Statement
refers to any Holder by name or otherwise as the holder of any
securities of the Company and such reference is not required by the
Securities Act or any similar federal statute, then such Holder shall
have the right to require the deletion of the reference to such Holder
in such Registration Statement or in any amendment or supplement to
the Registration Statement filed or prepared subsequent to the time
that such reference ceases to be required;
(c) promptly prepare and file with the SEC such amendments and
supplements to the Registration Statement and the Prospectus used in
connection with the Registration Statement as may be necessary to keep
the Registration Statement effective in accordance herewith and to
comply with the provisions of the Securities Act and rules thereunder
with respect to the disposition of the Registrable Securities;
(d) furnish, without charge, to the Holders and each underwriter,
if any, of the securities covered by such Registration Statement such
number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits), and the
Prospectus included in such Registration Statement (including each
preliminary prospectus) in conformity with the requirements of the
Securities Act, and other documents, as the Holders and underwriter
may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities owned by the Holders (the
Company hereby consenting to the use in accordance with applicable law
of each such Registration Statement (or amendment or post-effective
amendment thereto) and each such Prospectus (or preliminary prospectus
or supplement thereto) by
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the Holders and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such
Registration Statement or Prospectus;
(e) use its commercially 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 the Holders participating in the registration or any
managing underwriter, if any, shall reasonably request in writing, and
do any and all other acts and things which may be reasonably necessary
or advisable to enable the Holders participating in the registration,
or underwriter, if any, to consummate the disposition of the
Registrable Securities in such jurisdictions (including using its best
efforts to keep such registrations or qualifications in effect for so
long as the Registration Statement remains in effect) except that in
no event shall the Company be required to qualify to do business as a
foreign corporation in any jurisdiction where it would not, but for
the requirements of this paragraph (d), be required to be so
qualified, to subject itself to taxation in any such jurisdiction or
to consent to general service of process in any such jurisdiction;
(f) promptly notify the Holders and each managing underwriter, if
any: (i) when the Registration Statement, any pre-effective amendment,
the Prospectus or any prospectus supplement related thereto or
post-effective amendment to the Registration Statement has been filed
and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of any request by
the SEC or any state securities authority for amendments or
supplements to the Registration Statement or the Prospectus related
thereto or for additional information; (iii) of the issuance by the
SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose; (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of any Registrable Securities for sale
under the securities or blue sky laws of any jurisdiction or the
initiation of any proceeding for such purpose; (v) of the existence of
any fact of which the Company becomes aware which results in the
Registration Statement, the Prospectus or any amendment related
thereto or any document incorporated therein by reference containing
an untrue statement of a material fact or omitting to state a material
fact required to be stated therein or necessary to make any statement
therein not misleading; and if the notification relates to an event
described in clause (v), the Company shall promptly prepare and
furnish to each such Holder and each underwriter, if any, a reasonable
number of copies of a Prospectus supplemented or amended 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 in the light of the
circumstances under which they were made not misleading; and if the
notification relates to an event described in clause (iii) or (iv),
the Company shall promptly use its reasonable best efforts to prevent
the issuance of any stop order
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or suspension of the qualification of any Registrable Securities or to
obtain the withdrawal of any stop order, if issued, or to cause the
qualification of any Registrable Securities to not be suspended;
(g) comply with all applicable rules and regulations of the SEC,
and make generally available to its security holders, as soon as
reasonably practicable after the effective date of the registration
statement and in any event within 16 months thereafter, an earnings
statement (which need not be audited) covering the period of at least
twelve consecutive months beginning with the first day of the
Company's first calendar quarter after the effective date of the
Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(h) cause all such Registrable Securities covered by such
Registration Statement to be listed on the principal securities
exchange on which similar securities issued by the Company are then
listed (if any), if the listing of such Registrable Securities is then
permitted under the rules of such exchange;
(i) provide and cause to be maintained a transfer agent and
registrar for all such Registrable Securities covered by such
Registration Statement not later than the effective date of such
Registration Statement;
(j) enter into such customary agreements (including, if
applicable, an underwriting agreement) and take such other actions as
the Holders shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(k) obtain an opinion from the Company's counsel and a "cold
comfort" letter from the Company's independent public accountants in
customary forms and covering such matters as are customarily covered
by such opinions and "cold comfort" letters delivered to underwriters
in underwritten public offerings, which opinion and letter shall be
reasonably satisfactory to the underwriters, if any, and to the
Holders participating in the registration and furnish to such Holders
and to each underwriter, if any, a copy of such opinion and letter
addressed to such Holders (in the case of the opinion) and underwriter
(in the case of the opinion and the "cold comfort" letter);
(l) deliver promptly to the Holders participating in the
registration and counsel for such Holders and each underwriter, if
any, copies of all correspondence between the SEC and the Company, its
counsel or auditors and any memoranda relating to discussions with the
SEC or its staff with respect to the Registration Statement, other
than those portions of any such memoranda which contain information
subject to attorney-client privilege with respect to the Company, and,
upon receipt of such confidentiality agreements as the Company may
reasonably request, make reasonably available for inspection by such
Holders and by any underwriter, if any, participating in any
disposition to be effected pursuant to such Registration Statement and
by any attorney, accountant
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or other agent retained by such Holders 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 such Holder, underwriter, attorney, accountant or agent
in connection with such Registration Statement;
(m) use its reasonable best efforts to promptly obtain the
withdrawal of any order suspending the effectiveness of the
Registration Statement;
(n) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the Registration Statement;
(o) make reasonably available its employees and personnel
(including its chief executive officer and chief financial officer)
and otherwise provide reasonable assistance to the underwriters
(taking into account the needs of the Company's business and the
requirements of the marketing process) in the marketing of Registrable
Securities in any underwritten offering;
(p) promptly, prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the
Prospectus (after the initial filing of such Registration Statement),
provide copies of such document to counsel for the Holders
participating in the registration, and to each managing underwriter,
if any, and make the Company's representatives reasonably available
for discussion of such document and make such changes in such document
concerning the Holders prior to the filing thereof as counsel for the
Holders or underwriters may reasonably request;
(q) furnish to the Holders, and the managing underwriter, without
charge, at least one signed copy of the Registration Statement and
any post-effective amendments thereto, including financial statements
and schedules, all documents incorporated therein by reference and all
exhibits (including those incorporated by reference);
(r) cooperate with the Holders and the managing underwriter, if
any, to facilitate the timely preparation and delivery of certificates
not bearing any restrictive legends representing the Registrable
Securities to be sold, and cause such Registrable Securities to be
issued in such denominations and registered in such names in
accordance with the underwriting agreement prior to any sale of
Registrable Securities to the underwriters or, if not an underwritten
offering, in accordance with the instructions of the Holders
participating in the registration at least three business days prior
to any sale of Registrable Securities; and
(r) take all such other commercially reasonable actions as are
necessary or advisable in order to expedite or facilitate the
disposition of such Registrable Securities.
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The Company may require as a condition precedent to the Company's
obligations under this Section 2.4 that the Holders participating in
the registration furnish the Company such information regarding such
Holder and the distribution of their Registrable Securities as the
Company may from time to time reasonably request, provided that such
information shall be used only in connection with such registration.
The Holders participating in the registration agree that upon
receipt of any notice from the Company of the happening of any event
of the kind described in clause (v) of paragraph (f) of this Section
2.4, each Investor will discontinue its disposition of Registrable
Securities pursuant to the Registration Statement covering such
Registrable Securities until its receipt of the copies of the
supplemented or amended Prospectus contemplated by paragraph (f) of
this Section 2.4 and, if so directed by the Company, will deliver to
the Company (at the Company's expense) all copies, other than
permanent file copies, then in its possession of the prospectus
covering such Registrable Securities that was in effect at the time of
receipt of such notice. Notwithstanding the foregoing, the Company may
suspend the use of the Prospectus and shall not be required to amend
or supplement the Registration Statement, any related Prospectus or
any document incorporated by reference, for a period not to exceed the
Maximum Delay Period if and so long as the Delay Conditions exist.
If any such Registration Statement or comparable statement under
"blue sky" laws refers to any Holder by name or otherwise as the
holder of any securities of the Company, then the Holder, shall have
the right to require (i) the insertion therein of language, in form
and substance satisfactory to such Holder and the Company, to the
effect that the holding by such Holder of such securities is not to be
construed as a recommendation by such Holder of the investment quality
of the Company's securities covered thereby and that such holding does
not imply that such Holder will assist in meeting any future financial
requirements of the Company, or (ii) in the event that such reference
to any Holder by name or otherwise is not, in the judgment of the
Company, as advised by counsel, required by the Securities Act or any
similar federal statute or any state "blue sky" or securities law then
in force, the deletion of the reference to such Investor.
12
2.5 Registration Expenses.
(a) "Expenses" shall mean any and all fees and expenses incident
to the Company's performance of or compliance with this Article 2,
including, without limitation: (i) SEC, stock exchange or National
Association of Securities Dealers, Inc. registration, listing and
filing fees and all fees with respect to the inclusion of securities
in NASDAQ, (ii) fees and expenses of compliance with state securities
or "blue sky" laws and in connection with the preparation of a "blue
sky" survey, including without limitation, reasonable fees and
expenses of blue sky counsel, (iii) printing and copying expenses,
(iv) messenger and delivery expenses, (v) expenses incurred in
connection with any road show, (vi) fees and disbursements of counsel
for the Company, (vii) with respect to each registration, the
reasonable fees and disbursements of one counsel for the participating
Holders, (viii) fees and disbursements of all independent public
accountants (including the expenses of any audit and/or "cold comfort"
letter) and fees and expenses of other persons, including special
experts, retained by the Company, (ix) fees and expenses payable to an
underwriter, and (x) any other fees and disbursements of underwriters,
if any, customarily paid by issuers or sellers of securities.
(b) The Company shall pay all Expenses with respect to this
Article 2.
(c) Notwithstanding the foregoing, (x) the provisions of this
Section 2.5 shall be deemed amended to the extent necessary to cause
these expense provisions to comply with "blue sky" laws of each state
in which the offering is made and (y) the Company shall, in the case
of all registrations under this Article 2, be responsible for all its
internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting
duties).
2.6 Certain Limitations on Registration Rights. In the case of any
registration under Section 2.1, if the Company has determined to enter into
an underwriting agreement in connection therewith, all securities to be
included in such registration shall be subject to an underwriting agreement
and no Person may participate in such registration unless such Person
agrees to sell such Person's securities on the basis provided therein and
completes and executes all reasonable questionnaires and other documents
(including custody agreements and powers of attorney) which must be
executed in connection therewith, and provides such other information to
the Company or the underwriter as may be necessary to register such
Person's securities.
2.7 Limitations on Sale or Distribution of Other Securities.
(a) Notwithstanding anything herein to the contrary, nothing in
this Agreement shall be deemed to restrict any Holder from (i)
selling, transferring or otherwise disposing of any Common Stock or
any other equity security of the Company or any security convertible
into or exchangeable or exercisable for any equity security of the
Company (A) to any of its Affiliates or (B) in any private
13
transaction exempt from the registration requirements of the
Securities Act or (ii) engaging in any brokerage, investment advisory,
financial advisory, anti-raid advisory, merger advisory, financing,
asset management, trading, market making, arbitrage and other similar
activities conducted in the ordinary course of its or its Affiliates'
business.
(b) The Company hereby agrees that, if it shall previously have
received a request for registration pursuant to Section 2.1 or 2.2,
and if such previous registration shall not have been withdrawn or
abandoned, the Company shall not sell, transfer, or otherwise dispose
of, any Common Stock or any other equity security of the Company or
any security convertible into or exchangeable or exercisable for any
equity security of the Company (other than as part of such
underwritten public offering, a registration on Form S-4 or Form S-8
or any successor or similar form which is then in effect or upon the
conversion, exchange or exercise of any then outstanding Common Stock
Equivalent (as such term is defined in the Articles)), until a period
of 180 days shall have elapsed from the effective date of such
previous registration; and the Company shall so provide in any
registration rights agreements hereafter entered into with respect to
any of its securities.
2.8 No Required Sale. Nothing in this Agreement shall be deemed to
create an independent obligation on the part of the Investor or any Holders
to sell any Registrable Securities pursuant to any effective registration
statement.
2.9 Indemnification.
(a) In the event of any registration of any of the Registrable
Securities under the Securities Act pursuant to this Article 2, the
Company will, and hereby does, indemnify and hold harmless, to the
fullest extent permitted by law, the Investor, the Holders, their
directors, officers, Affiliates, legal counsel, accountants,
employees, stockholders, members and partners (and the directors,
officers, Affiliates, employees, stockholders, members and partners
thereof), each other Person who participates as an underwriter, if
any, in the offering or sale of such Registrable Securities, each
officer, director, employee, stockholder, member or partner of such
underwriter and each other Person, if any, who controls any Investor,
Holder or any such underwriter within the meaning of the Securities
Act, against any and all losses, claims, damages or liabilities, joint
or several, actions or proceedings (whether commenced or threatened)
in respect thereof ("Claims") and expenses (including reasonable fees
of counsel and any amounts paid in any settlement effected with the
Company's consent, which consent shall not be unreasonably withheld or
delayed) to which each such indemnified party may become subject under
the Securities Act or otherwise, insofar as such Claims or expenses
arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto) under which such
Registrable Securities were registered under the Securities Act,
together with
14
the documents incorporated by reference therein, 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, (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary, final or summary
prospectus or any amendment or supplement thereto, together with the
documents incorporated by reference therein, or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; (iii) any violation by the Company of applicable
securities laws in the jurisdictions in which the registration was
made; or (iv) any breach of this Agreement; provided, however, that
the Company shall not be liable to any such indemnified party in any
such case to the extent such Claim or expense arises out of or is
based upon any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact made
in such Registration Statement or amendment thereof or supplement
thereto or in any such Prospectus or any preliminary, final or summary
prospectus in reliance upon and in conformity with written information
furnished to the Company by such indemnified party with respect to
such indemnified party specifically for use therein. Such indemnity
and reimbursement of expenses shall remain in full force and effect
regardless of any investigation made by or on behalf of such
indemnified party and shall survive the transfer of such Registrable
Securities by such indemnified party.
(b) In the event of a registration of any of the Registrable
Securities under the Securities Act pursuant to the provisions of this
Agreement, each seller of such Registrable Securities thereunder
shall, severally and not jointly, indemnify and hold harmless (in the
same manner and to the same extent as set forth in paragraph (a) of
this Section 2.9) to the fullest extent permitted by law, the Company,
its officers and directors, each Person controlling the Company within
the meaning of the Securities Act and all other prospective sellers in
such registration and their directors, officers, general and limited
partners, underwriters and respective controlling Persons, with
respect to any untrue statement or alleged untrue statement of any
material fact in, or omission or alleged omission of any material fact
from, the Registration Statement under which such Registrable
Securities shall have been registered, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement
thereto, if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company or its representatives by or on
behalf of such seller, specifically for use therein; provided,
however, that the aggregate amount which any seller shall be required
to pay pursuant to this Section 2.9 shall in no case be greater than
the amount of the net proceeds received by such seller upon the sale
of the Registrable Securities pursuant to the Registration Statement
giving rise to such claim for indemnification. Such indemnity and
reimbursement of expenses shall remain in full force and effect
regardless of any investigation made by or on behalf of such
indemnified party and shall survive the transfer of such securities
15
by such seller. The indemnity provisions under this Section 2.9(b)
will not be applicable to amounts paid in settlements effected without
consent of the indemnifying seller (which consent will not be
unreasonably withheld).
(c) Indemnification similar to that specified in the preceding
paragraphs (a) and (b) of this Section 2.9 (with appropriate
modifications) shall be given by the Company and each seller of
Registrable Securities with respect to any required registration or
other qualification of securities under any state securities and "blue
sky" laws.
(d) If the indemnification provided for in this Section 2.9 is
held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any Claim or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such Claim or expense
in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and the indemnified party in connection with
the statements or omissions that resulted in such Claim or expense as
well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.9(d) were
determined by pro rata or per capita allocation or by any other method
of allocation which does not take account of the equitable
considerations referred to in the immediately preceding sentence. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Holders and any
underwriters, selling agents or other securities professionals in this
Section 2.9(d) to contribute shall be several in proportion to the
percentage of Registrable Securities registered or underwritten, as
the case may be, by them and not joint.
(e) Any person entitled to indemnification under this Agreement
shall notify promptly the indemnifying party in writing of the
commencement of any action or proceeding with respect to which a claim
for indemnification may be made pursuant to this Section 2.9, but the
failure of any indemnified party to provide such notice shall not
relieve the indemnifying party of its obligations under the preceding
paragraphs of this Section 2.9, except to the extent the indemnifying
party is materially prejudiced thereby and shall not relieve the
indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Article 2. In case any
action or proceeding is brought against an indemnified party and it
shall notify the indemnifying party of the
16
commencement thereof, the indemnifying party shall be entitled to
participate therein and, unless in the reasonable opinion of outside
counsel to the indemnified party a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such
claim, to assume the defense thereof jointly with any other
indemnifying party similarly notified, to the extent that it chooses,
with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party
that it so chooses, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided,
however, that (i) if the indemnifying party fails to take reasonable
steps necessary to defend diligently the action or proceeding within
20 days after receiving notice from such indemnified party that the
indemnified party believes it has failed to do so; or (ii) if such
indemnified party who is a defendant in any action or proceeding which
is also brought against the indemnifying party reasonably shall have
concluded that there may be one or more legal defenses available to
such indemnified party which are not available to the indemnifying
party; or (iii) if representation of both parties by the same counsel
is otherwise inappropriate under applicable standards of professional
conduct, then, in any such case, the indemnified party shall have the
right to assume or continue its own defense as set forth above and the
indemnifying party shall be liable for any reasonable expenses
therefor. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (A) includes an unconditional
release of the indemnified party from all liability arising out of
such action or claim and (B) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf
of any indemnified party.
(f) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which
any indemnified party may have pursuant to law or contract and shall
remain operative and in full force and effect regardless of any
investigation made or omitted by or on behalf of any indemnified party
and shall survive the transfer of the Registrable Securities by any
such party.
(g) Notwithstanding any other provision of this Section 2.9, in
no event will any Holder be required to undertake liability to any
person under this Section 2.9 for any amounts in excess of the dollar
amount of the proceeds received by such Holder from the sale of such
Holder's Registrable Securities (after deducting any fees, discounts
and commissions applicable thereto) pursuant to any Registration
Statement.
17
(h) The indemnification and contribution required by this Section
2.9 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
2.10 Termination of Registration Rights. All registration rights
provided for in Sections 2.1 or 2.2 expire on the earlier of (i) five years
following the date hereof or (ii) the date on which all Registrable
Securities have been sold (other than in a privately negotiated sale)
pursuant to Rule 144 (or any successor provision) under the Securities Act.
For the avoidance of doubt, this Agreement and the Company's obligations
hereunder shall continue regardless of whether or not the Second Lien
Credit Agreement, as amended, between the parties is then in effect.
3. UNDERWRITTEN OFFERINGS.
3.1 Requested Underwritten Offerings. If requested by the underwriters
for any underwritten offering pursuant to a registration requested under
Section 2.2, the Company shall enter into a customary underwriting
agreement with the underwriters. Such underwriting agreement shall be
satisfactory in form and substance to the Holders of a majority of the
Registrable Securities to be included in such registration, and shall
contain such representations and warranties by, and such other agreements
on the part of, the Company and such other terms as are generally included
in the standard underwriting agreement of such underwriters, including,
without limitation, indemnities and contribution agreements. Such Holders
shall be a party to such underwriting agreement and Holders of a majority
of the Registrable Securities to be included in such registration may
require that any or all of the representations and warranties by, and the
other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holders and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to
the obligations of such Holder; provided, however, that the Company shall
not be required to make any representations or warranties with respect to
written information specifically provided by any of the Holders for
inclusion in the Registration Statement. Such underwriting agreement shall
also contain such representations and warranties by such Holder as are
customary in agreements of that type.
3.2 Piggyback Underwritten Offerings. In the case of a registration
pursuant to Section 2.1 hereof, if the Company shall have determined to
enter into an underwriting agreement in connection therewith, the
participating Holders shall be subject to such underwriting agreement. Such
Holders may require that any or all of the representations and warranties
by, and the other agreements on the part of, the Company to and for the
benefit of such underwriters shall also be made to and for the benefit of
such Holders and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holders. Such underwriting
agreement shall also contain such representations and warranties by such
Investor as are customary in agreements of that type.
18
4. GENERAL.
4.1 Capitalization. The Company represents and warrants to the
Investor, at and as of the Issue Date (as defined in the Warrant), that the
authorized capital stock of the Company consists of 75,000,000 shares of
Class A Common Stock, of which 13,401,938 are issued and outstanding and
25,000,000 shares of Class B Common Stock, of which 5,077,746 are issued
and outstanding (collectively the "Company Shares"). All of the issued and
outstanding Company Shares have been duly authorized and validly issued and
all such shares are fully paid and nonassessable. There are no outstanding
options, warrants, commitments, or other rights or instruments to purchase
or acquire from the Company any Company Shares, or any securities
(including any bonds, debentures, notes or other indebtedness) or rights
convertible into or exchangeable for Company Shares, except for (i) this
Warrant, (ii) the Class A Common Stock Purchase Rights pursuant to the
Class A Rights Agreement dated April 22, 1992, as amended and on file with
the Securities and Exchange Commission (the "Class A Rights Agreement") and
(iii) the Class B Common Stock Purchase Rights pursuant to the Amended and
Restated Class B Rights Agreement dated April 22, 1992, as amended and on
file with the Securities and Exchange Commission (the "Class B Rights
Agreement" and collectively with the Class A Rights Agreement, the "Rights
Agreements"). As of the date hereof, assuming issuance of all of the
Warrant Shares on the Issue Date but excluding any Company Shares issuable
pursuant to the Rights Agreements, there are 19,870,628 Company Shares
outstanding.
4.2 Adjustments Affecting Registrable Securities. The Company agrees
that it shall not effect or permit to occur any combination or subdivision
of its securities which would adversely affect the ability of the Investor
or any Holders to include Registrable Securities in any registration
contemplated by this Agreement or the marketability of such Registrable
Securities in any such registration.
4.3 Rule 144. The Company covenants that (i) so long as it remains
subject to the reporting provisions of the Exchange Act, it will timely
file the reports required to be filed by it under the Securities Act or the
Exchange Act (including, but not limited to, the reports under Sections 13
and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule
144 under the Securities Act), and (ii) it will take such further action
(including providing opinions or other statements of its legal counsel) to
the extent required from time to time to enable the Holders to sell
Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (A) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (B) any
similar rule or regulation hereafter adopted by the SEC.
4.4 Amendments and Waivers. This Agreement may be amended, modified,
supplemented or waived only upon the written agreement of the Company and
the Investor.
4.5 Notices. Except as otherwise provided in this Agreement, all
notices, requests, consents and other communications hereunder to any party
shall be deemed to be sufficient if contained in a written instrument
delivered in person or by telecopy,
19
nationally recognized overnight courier or first class registered or
certified mail, return receipt requested, postage prepaid, addressed to
such party at the address set forth below or such other address as may
hereafter be designated in writing by such party to the other parties:
(i) if to the Company, to:
Tecumseh Products Company
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: President
with a copy (which shall not constitute notice) to:
Miller, Canfield, Paddock and Stone, P.L.C.
000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq
(ii) if to the Investor, to:
Tricap Partners II L.P.
BCE Place, Suite 3000
000 Xxx Xxxxxx, X.X. Xxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxx
with additional notice to:
Tricap Partners LLC
3 World Financial Center
000 Xxxxx Xxxxxx-00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxx
with a copy (which shall not constitute notice) to:
Squire, Xxxxxxx & Xxxxxxx L.L.P.
Two Renaissance Square
20
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxx
All such notices, requests, consents and other communications shall be
deemed to have been given when received.
4.6 No Inconsistent Agreements. Without the prior written consent of
the Investor, the Company will not, on or after the date of this Agreement,
enter into any agreement with respect to its securities which is
inconsistent with the rights granted in this Agreement or otherwise
conflicts with the provisions hereof. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its
securities that is superior to the rights granted to the holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
4.7 Mergers. The Company shall not, directly or indirectly, enter into
any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation unless the proposed surviving corporation
shall, prior to such merger, consolidation or reorganization, agree in
writing to assume the obligations of the Company under this Agreement, and
for that purpose references hereunder to "Registrable Securities" shall be
deemed to be references to the securities which the Holders would be
entitled to receive in exchange for Registrable Securities under any such
merger, consolidation or reorganization; provided, however, that the
provisions of this Agreement shall not apply in the event of any merger,
consolidation or reorganization in which the Company is not the surviving
corporation if the Holders of Registrable Securities are entitled to
receive in exchange therefor (i) cash, or (ii) securities of the acquiring
corporation which may be immediately sold to the public without
registration under the Securities Act.
4.8 Miscellaneous.
(a) This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto and their respective
successors, personal representatives and assigns, whether so expressed
or not. If any Person shall acquire Registrable Securities in any
manner, whether by assignment from a Holder, operation of law or
otherwise, such transferee shall promptly notify the Company, which
notice shall include the name and address of said transferee or
assignee and identify the securities with respect to which such
registration rights are being transferred or assigned, and such
Registrable Securities acquired from the Investor shall be held
subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such Person shall be entitled to
receive the benefits of and be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this
Agreement. The parties to this Agreement intend that all Holders shall
be entitled to receive the benefits of
21
this Agreement and that any Holder participating in a registration
shall be bound by the terms and provisions of this Agreement by reason
of such election with respect to the Registrable Securities that are
included in a Registration Statement. If the Company shall so request,
any such successor or assign shall agree in writing to acquire and
hold the Registrable Securities acquired from the Investor subject to
all of the terms hereof. If the Investor shall acquire additional
Registrable Securities, such Registrable Securities shall be subject
to all of the terms, and entitled to all the benefits, of this
Agreement. No Persons other than the Investor and its assigns shall be
entitled to any benefits under this Agreement, except as otherwise
expressly provided herein.
(b) This Agreement (with the documents referred to herein or
delivered pursuant hereto) embodies the entire agreement and
understanding between the parties hereto and supersedes all prior
agreements and understandings relating to the subject matter hereof.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving
effect to the principles of conflicts of law. Each of the parties
hereto hereby agrees that service of any process, summons, notice or
document by U.S. registered mail to its respective address set forth
in this Agreement shall be effective service of process for any
action, proceeding or investigation in any court or before any
governmental authority ("Litigation") brought against it in any such
court. Each of the parties irrevocably and unconditionally waives, to
the fullest extent permitted by applicable law, any and all rights to
trial by jury in connection with any Litigation arising out of or
relating to this Agreement or the transactions contemplated hereby.
(d) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof. All section references are to this Agreement unless otherwise
expressly provided.
(e) This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall
constitute one instrument. This Agreement may be executed with
facsimile signatures, which shall be considered and treated as
original signatures.
(f) Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability
without rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in
any other jurisdiction.
(g) The parties hereto acknowledge that there would be no
adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in
addition to any other remedy to which it may
22
be entitled at law or in equity, shall be entitled to injunctive
relief, including specific performance, to enforce such obligations
without the posting of any bond, and, if any action should be brought
in equity to enforce any of the provisions of this Agreement, none of
the parties hereto shall raise the defense that there is an adequate
remedy at law. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under this Agreement may
result in material irreparable injury to the Investor or the Holders
for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Investor or any Holders may obtain
such relief as may be required to specifically enforce the Company's
obligations hereunder.
(h) Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments, and
documents as any other party hereto reasonably may request in order to
carry out the intent and accomplish the purposes of this Agreement and
the consummation of the transactions contemplated hereby.
(i) The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made
pursuant hereto shall remain in full force and effect and shall
survive the transfer and registration of the Registrable Securities.
(j) 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 hereof. There are no
restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein, with respect to the registration
rights granted with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
23
IN WITNESS WHEREOF, the undersigned have executed this Registration
Rights Agreement as of the date set forth above.
TECUMSEH PRODUCT COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President, Treasurer and
Chief Financial Officer
TRICAP PARTNERS II L.P.
By: Tricap Partners II GP L.P.,
its general partner
By: Tricap Partners Ltd., its
general partner
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Registration Rights Agreement - Signature Page
