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Exhibit 10.39
REGISTRATION RIGHTS AGREEMENT
AGREEMENT (this "AGREEMENT"), dated as of August 29, 2000, by and among
TRANSTECHNOLOGY CORPORATION (the "COMPANY"), a Delaware corporation, X. X.
XXXXXXX MEZZANINE FUND, L.P. ("WMF"), a Delaware limited partnership, ALBION
ALLIANCE MEZZANINE FUND I, L.P. ("ALBION I"), a Delaware limited partnership,
ALBION ALLIANCE MEZZANINE FUND II, L.P. ("ALBION II", and together with Albion
I, the "ALBION FUNDS"), a Delaware limited partnership, THE EQUITABLE LIFE
ASSURANCE SOCIETY OF THE UNITED STATES ("EQUITABLE"), a New York corporation,
FLEET CORPORATE FINANCE, INC. ("FLEET"), a Massachusetts corporation and
CITIZENS CAPITAL INC. ("CITIZENS"; and together with the WMF, the Albion Funds,
Equitable and Fleet, the "PURCHASERS"), a Massachusetts corporation.
W I T N E S S E T H :
WHEREAS, pursuant to the terms of the Securities Purchase Agreement
(the "PURCHASE AGREEMENT"), dated as of the date hereof, by and among the
Company and the Purchasers (i) WMF will purchase from the Company (a) a Senior
Subordinated Promissory Note (the "WMF NOTE") of the Company in the principal
amount of $30,000,000 and (b) a warrant (the "WMF WARRANT") to purchase an
aggregate of 171,041 shares of common stock, par value $.01 per share of the
Company (the "COMMON STOCK"); (ii) Albion I will purchase from the Company (a) a
Senior Subordinated Promissory Note (the "ALBION I NOTE") of the Company in the
principal amount of $4,000,000 and (b) a warrant (the "ALBION I WARRANT") to
purchase an aggregate of 22,805 shares of Common Stock; (iii) Albion II will
purchase from the Company (a) a Senior Subordinated Promissory Note (the "ALBION
II NOTE") of the Company in the principal amount of $8,500,000 and (b) a warrant
(the "ALBION II WARRANT") to purchase an aggregate of 48,462 shares of Common
Stock; (iv) Equitable will purchase from the Company (a) a Senior Subordinated
Promissory Note (the "EQUITABLE NOTE") of the Company in the principal amount of
$12,500,000 and (b) a warrant (the "EQUITABLE WARRANT") to purchase an aggregate
of 71,267 shares of Common Stock; (v) Fleet will purchase from the Company (a) a
Senior Subordinated Promissory Note (the "FLEET NOTE") of the Company in the
principal amount of $12,500,000 and (b) a warrant (the "FLEET WARRANT") to
purchase an aggregate of 71,267 shares of Common Stock; (vi) Citizens will
purchase from the Company (a) a Senior Subordinated Promissory Note (the
"CITIZENS NOTE"; and together with the WMF Note, the Albion I Note, the Albion
II Note, the Equitable Note and the Fleet Note, the "NOTES") of the Company in
the principal amount of $7,500,000 and (b) a warrant (the "CITIZENS WARRANT";
and together with the WMF Warrant, the the Albion I Warrant, the Albion II
Warrant, the Equitable Warrant and the Fleet Warrant, the "WARRANTS") to
purchase an aggregate of 42,760 shares of Common Stock; and
WHEREAS, the Company and the other parties hereto desire to provide for
the circumstances under which the Company will register securities of the
Company on behalf of such other parties.
NOW, THEREFORE, as an inducement to the Purchasers to consummate the
transactions contemplated by the Purchase Agreement and in consideration of the
premises and of the mutual covenants and obligations hereinafter set forth, the
Company hereby covenants
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and agrees with the other parties hereto, and with each subsequent holder of
Restricted Securities (as such term is defined herein), as follows:
SECTION 1 DEFINITIONS. As used herein, the following terms shall have
the following respective meanings:
"ALBION I NOTE" shall have the meaning ascribed to such terms in the
first Whereas clause.
"ALBION I WARRANT" shall have the meaning ascribed to such terms in
the first Whereas clause.
"ALBION II NOTE" shall have the meaning ascribed to such terms in the
first Whereas clause.
"ALBION II WARRANT" shall have the meaning ascribed to such terms in
the first Whereas clause.
"CERTIFICATE OF INCORPORATION" shall mean the Certificate of
Incorporation of the Company, as amended, in effect on the date hereof.
"CITIZENS NOTE" shall have the meaning ascribed to such terms in the
first Whereas clause.
"CITIZEN WARRANT" shall have the meaning ascribed to such terms in the
first Whereas clause.
"COMMISSION" shall mean the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act.
"EQUITABLE NOTE" shall have the meaning ascribed to such terms in the
first Whereas clause.
"EQUITABLE WARRANT" shall have the meaning ascribed to such terms in
the first Whereas clause.
"FLEET NOTE" shall have the meaning ascribed to such terms in the
first Whereas clause.
"FLEET WARRANT" shall have the meaning ascribed to such terms in the
first Whereas clause.
"INSTITUTIONAL INVESTORS" shall mean the Purchasers and their
respective successors and assigns.
"NOTES" shall have the meaning ascribed to such terms in the first
Whereas clause.
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"REGISTRATION EXPENSES" shall mean the expenses so described in
Section 7 hereof.
"RESTRICTED SECURITIES" shall mean the Notes, the Warrants and the
Restricted Stock, for so long as the instruments or certificates evidencing
such securities shall be required to bear the legend set forth in Section 2
hereof.
"RESTRICTED STOCK" shall mean the shares of Common Stock underlying
the Warrants, the certificates for which are required to bear the legend
set forth in Section 2 hereof.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean the expenses so described in Section 7
hereof.
"THRESHOLD AMOUNT" shall mean that number of Institutional Investors
holding at least 51% of the Restricted Stock then held by all Institutional
Investors.
"WARRANTS" shall have the meaning ascribed to such terms in the first
Whereas clause.
"WMF NOTE" shall have the meaning ascribed to such term in the first
Whereas clause.
"WMF PLEDGE" shall mean any pledge of the WMF Note, the WMF Warrant or
the shares of stock issued upon exercise of the WMF Warrant pursuant to the
terms of the partnership agreement or other agreement of WMF, pursuant to
which WMF issued any bonds, promissory notes or other evidence of
indebtedness.
"WMF WARRANT" shall have the meaning ascribed to such term in the
first Whereas clause.
SECTION 2 RESTRICTIVE LEGEND. The Notes and each certificate representing
the Restricted Securities and, except as otherwise provided in Section 3 hereof,
each certificate issued upon exchange or transfer of any such Restricted
Securities shall be stamped or otherwise imprinted with a legend substantially
in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED,
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS"
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SECTION 3 NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer of
any Restricted Securities (other than under the circumstances described in
Section 5 hereof or in connection with the WMF Pledge), the holder thereof shall
give written notice to the Company of its intention to effect such transfer.
Each such notice shall describe the manner of the proposed transfer and, if
requested by the Company, shall be accompanied by an opinion of counsel
reasonably satisfactory to the Company to the effect that the proposed transfer
may be effected without registration under the Securities Act, whereupon such
holder shall be entitled to transfer such securities in accordance with the
terms of its notice; PROVIDED, HOWEVER, that no such opinion of counsel shall be
required for a transfer by a holder of Restricted Securities which is a
partnership to a partner or employee of such holder or a retired partner or
retired employee of such holder who retires after the date hereof, or to the
estate of any such partner, retired partner, employee or retired employee, or a
transfer by gift, will or intestate succession from any holder of Restricted
Securities to his or her spouse or members of his or her or his or her spouse's
family or a trust for the benefit of any of the foregoing persons, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if such transferee were an original holder of Restricted Securities
hereunder. All Restricted Securities transferred as above provided shall bear
the legend set forth in Section 2, except that such securities shall not bear
such legend if (i) such transfer is in accordance with the provisions of Rule
144 of the Securities Act (or any other rule permitting public sale without
registration under the Securities Act) or (ii) the opinion of counsel referred
to above is to the further effect that the transferee and any subsequent
transferee (other than an affiliate of the Company) would be entitled to
transfer such securities in a public sale without registration under the
Securities Act.
SECTION 4 REQUIRED REGISTRATION.
[INTENTIONALLY OMITTED]
SECTION 5 INCIDENTAL REGISTRATION; FORM S-3 REGISTRATION.
(a) If the Company at any time proposes to register any of its securities
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Form S-8 or another form not available for
registering Restricted Stock for sale to the public), each such time it will
give written notice to all holders of Restricted Stock of its intention to do
so. Upon the written request of any such holder, given within 20 days after the
date of any such notice, to register any of its Restricted Stock (which request
shall state the intended method of disposition thereof), the Company will use
its best efforts to cause the Restricted Stock as to which registration shall
have been so requested to be included in the securities to be covered by the
registration statement proposed to be filed by the Company, all to the extent
requisite to permit the sale or other disposition by the holder (in accordance
with its written request) of such Restricted Stock so registered. The Company
may withdraw any such registration statement before it becomes effective or
postpone the offering of securities contemplated by such registration statement
without any obligation to the holders of any Restricted Stock. In the event that
any registration pursuant to this Section 5 shall be, in whole or in part, an
underwritten public offering of Common Stock, any request by a holder pursuant
to this Section 5 to register Restricted Stock shall specify that either (i)
such Restricted Stock is to be included in the underwriting on the same terms
and conditions as the shares of Common Stock otherwise being sold through
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underwriters under such registration or (ii) such Restricted Stock is to be sold
in the open market without any underwriting, on terms and conditions comparable
to those normally applicable to offerings of common stock in reasonably similar
circumstances. The number of shares of Restricted Stock to be included in such
an underwriting may be reduced (PRO RATA among the requesting holders) if and to
the extent that the managing underwriter shall be of the opinion that such
inclusion would adversely affect the marketing of the securities to be sold by
the Company therein; PROVIDED, HOWEVER, that if any shares are to be included in
such underwriting for the account of any person other than the Company, the
number of shares to be included by any such person shall be reduced first; and
PROVIDED FURTHER, HOWEVER, that the number of any such shares held by any person
other than the holders of Restricted Stock hereunder shall be reduced before the
number of any such shares held by the holders of Restricted Stock hereunder is
reduced. With respect to the first proviso of the preceding sentence, if the
Company elects to reduce PRO RATA the amount of Restricted Stock proposed to be
offered in the underwriting for the accounts of all persons other than the
Company, for purposes of making any such reduction, each holder of Restricted
Stock which is a partnership, together with the affiliates, partners, employees,
retired partners and retired employees of such holder, the estates and family
members of any such partners, employees, retired partners and retired employees
and of their spouses, and any trusts for the benefit of any of the foregoing
persons shall be deemed to be a single "person," and any PRO RATA reduction with
respect to such "person" shall be based upon the aggregate number of shares of
Restricted Stock owned by all entities and individuals included as such
"person", as defined in this sentence (and the aggregate number so allocated to
such "person" shall be allocated among the entities and individuals included in
such "person" in such manner as such holder of Restricted Stock may reasonably
determine). Notwithstanding anything to the contrary contained in this Section
5, in the event that there is an underwritten offering of securities of the
Company pursuant to a registration covering Restricted Stock and a selling
holder of Restricted Stock does not elect to sell his, her or its Restricted
Stock to the underwriters of the Company's securities in connection with such
offering, such holder shall refrain from selling such Restricted Stock not
registered pursuant to this Section 5 during the period of distribution of the
Company's securities by such underwriters and the period in which the
underwriting syndicate participates in the after market; PROVIDED, HOWEVER, that
such holder shall, in any event, be entitled to sell its Restricted Stock in
connection with such registration commencing on the 120th day after the
effective date of such registration statement.
(b) If, at a time when Form S-3 is available for such registration, the
Company shall receive from a Threshold Amount of Institutional Investors a
written request or requests that the Company effect a registration on Form S-3
of any of such holders' Restricted Stock, the Company will promptly give written
notice of the proposed registration to all other holders of Restricted Stock
and, as soon as practicable, effect such registration and all such related
qualifications and compliances as may be requested and as would permit or
facilitate the sale and distribution of all Restricted Stock as are specified in
such request and any written requests of other holders given within 20 days
after receipt of such notice. The Company shall not be required to file a
registration statement under Form S-3 if counsel to the Company opines to the
requesting Institutional Investors that the filing of such a registration
statement would require the disclosure of material non-public information about
the Company, the disclosure of which could have a material adverse effect on the
business or financial condition of the Company, in which event no such
registration statement shall be filed until the earlier of the lapse of 90 days
from the issuance of the opinion of Company counsel or the issuance of a
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subsequent opinion that such information is no longer required to be disclosed,
is not material or non-public, or its disclosure would not have a material
adverse effect on the business or financial condition of the Company; PROVIDED,
HOWEVER, that the Company may not exercise its right under this clause more than
once in any 12-month period. The Company shall have no obligation to effect a
registration under this Section 5(b) unless either (i) all the outstanding
shares of Restricted Stock are requested to be sold pursuant to such
registration or (ii) the aggregate offering price of the securities requested to
be sold pursuant to such registration is, in the good faith judgment of the
Company, expected to be equal to or greater than $1,000,000. The Company shall
be obliged to register Restricted Stock pursuant to requests made by a Threshold
Amount of Institutional Investors under this Section 5(b) on two occasions only.
SECTION 6 REGISTRATION PROCEDURES. If and whenever the Company is required
by the provisions of Section 5 hereof to use its best efforts to effect the
registration of any shares of Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for the period of the distribution
contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in Section 6 (a) above and as to comply with the provisions
of the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller and to each underwriter such number of
copies of the registration statement and the prospectus included therein
(including each preliminary prospectus) as such persons may reasonably request
in order to facilitate the public sale or other disposition of the Restricted
Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or blue sky laws of
such jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter shall reasonably request;
(e) immediately notify each seller under such registration statement
and each underwriter, at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, of the happening of any event as a
result of which the prospectus contained in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(f) use its best efforts to furnish, at the request of any seller, on
the date that Restricted Stock is delivered to the underwriters for sale
pursuant to such registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such
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registration, addressed to the underwriters and to such seller, stating (A) that
such registration statement has become effective under the Securities Act, (B)
that, to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act and (C)
that the registration statement and the related prospectus, and each amendment
or supplement thereof, comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder (except that such counsel need not express any opinion
as to financial statements contained therein), and to such other effects as may
reasonably be requested by counsel for the underwriters or by such seller or its
counsel, and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters and to such
seller, stating that they are independent public accountants within the meaning
of the Securities Act and that, in the opinion of such accountants, the
financial statements of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to the registration in respect of
which such letter is being given as such underwriters or such seller may
reasonably request; and
(g) make available for inspection by each seller, any underwriter
participating in any distribution pursuant to such registration statement, and
any attorney, accountant or other agent retained by such seller or underwriter,
all financial and other records, pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors and employees to supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement.
For purposes of Sections 6(a) and (b) above, the period of distribution of
Restricted Stock in a firm commitment underwritten public offering shall be
deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Restricted Stock
in any other registration shall be deemed to extend until the earlier of the
sale of all Restricted Stock covered thereby or nine months after the effective
date thereof.
In connection with each registration hereunder, the selling holders of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as shall be
necessary in order to assure compliance with Federal and applicable state
securities laws.
In the event that, in the judgment of the Company, it is advisable to suspend
use of a prospectus included in a registration statement due to pending material
developments or other events that have not yet been publicly disclosed and as to
which the Company believes public disclosure would be detrimental to the
Company, the Company shall notify all selling holders of Restricted Stock, and
provide a certificate of its Chief Financial Officer, to such effect, and, upon
receipt of such notice and certificate, each selling holder of Restricted Stock
shall immediately discontinue any sales of the Restricted Stock pursuant to such
registration statement until such stockholder has received copies of a
supplemented or amended prospectus or is advised in writing by the Company that
the then current prospectus may be used and has received copies of any
additional
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or supplemental filings that are incorporated or deemed incorporated by
reference in such prospectus. In connection with each registration pursuant to
Section 5 hereof covering an underwritten public offering, the Company agrees to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between major
underwriters and companies of the Company's size and investment stature,
provided that such agreement shall not contain any such provision applicable to
the Company which is inconsistent with the provisions hereof and provided,
further, that the time and place of the closing under said agreement shall be as
mutually agreed upon between the Company and such managing underwriter.
SECTION 7 EXPENSES. All expenses incurred by the Company in complying with
Section 5 hereof, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees of the National Association of
Securities Dealers, Inc., transfer taxes, fees of transfer agents and registrars
and costs of insurance and fees and expenses of one counsel for the sellers of
Restricted Stock, but excluding any Selling Expenses, are herein called
"Registration Expenses". All underwriting discounts and selling commissions
applicable to the sale of Restricted Stock are herein called "Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to Section 5 hereof. All Selling Expenses
incurred in connection with any sale of Restricted Stock by any participating
seller shall be borne by such participating seller, or by such persons other
than the Company (except to the extent the Company shall be a seller) as they
may agree.
SECTION 8 INDEMNIFICATION. In the event of a registration of any of the
Restricted Stock under the Securities Act pursuant to Section 5 hereof, the
Company will indemnify and hold harmless each seller of such Restricted Stock
thereunder and each underwriter of such Restricted Stock thereunder and each
other person, if any, who controls such seller or underwriter within the meaning
of the Securities Act, against any and all losses, claims, damages, expenses or
liabilities, joint or several, to which such seller or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such Restricted Stock was registered under the Securities Act pursuant to
Section 5, any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each such seller, each such underwriter and each such controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, expense
or action; PROVIDED, HOWEVER, that the Company will not be liable in any such
case if and to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information furnished by
such seller, such underwriter or such controlling person in writing specifically
for use in such registration statement or prospectus.
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In the event of a registration of any of the Restricted Stock under the
Securities Act pursuant to Section 5 hereof, each seller of such Restricted
Stock thereunder, severally and not jointly, will indemnify and hold harmless
the Company and each person, if any, who controls the Company within the meaning
of the Securities Act, each officer of the Company who signs the registration
statement, each director of the Company, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against all
losses, claims, damages, expenses or liabilities, joint or several, to which the
Company or such officer or director or underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages, expenses or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Section 5,
any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
registration statement or prospectus; PROVIDED, FURTHER, HOWEVER, that the
liability of each seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of the shares sold by such seller under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not to exceed the net proceeds received by such
seller from the sale of Restricted Stock covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party under this Section 8 unless, and only to the extent that,
such omission results in the indemnified party's forfeiture of substantive
rights or defenses. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in and, to the
extent it shall wish, to assume and undertake the defense thereof with counsel
reasonably satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election to assume and
undertake the defense thereof, the indemnifying party shall not be liable to
such indemnified party under this Section 8 for any legal expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with counsel so selected;
PROVIDED, HOWEVER, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the
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indemnified party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in the defense of such
action, with the expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the indemnifying party as
incurred.
Notwithstanding the foregoing, any indemnified party shall have the right to
retain its own counsel in any such action, but the fees and disbursements of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party shall have failed to retain counsel for the indemnified party
as aforesaid, (ii) the indemnified party shall have reasonably concluded that
there may be reasonable defenses available to it which are different from or
additional to those available to the indemnifying party or that the interests of
the indemnified party conflict with the interests of the indemnifying party, or
(iii) the indemnifying party and such indemnified party shall have mutually
agreed to the retention of such counsel. It is understood that the indemnifying
party shall not, in connection with any action or related actions in the same
jurisdiction, be liable for the fees and disbursements of more than one separate
firm qualified in such jurisdiction to act as counsel for the indemnified party.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. If the indemnification provided for in the first
two paragraphs of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party under such paragraphs in respect of any losses,
claims, damages or liabilities or actions referred to therein, then each
indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the sellers of such Restricted Stock, on the other, in connection with the
statement or omissions which resulted in such losses, claims, damages,
liabilities or actions, as well as any other relevant equitable considerations
including, without limitation, the failure to give any notice under the second
paragraph of this Section 8. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, on the one hand, or by the
sellers of such Restricted Stock, on the other hand, and to the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the sellers of Restricted Stock agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by PRO
RATA allocation (even if all of the sellers of Restricted Stock were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or action referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this and the immediately
preceding paragraph, the sellers of such Restricted Stock shall not be required
to contribute any amount in excess of the amount, if any, by which the total
price at which the Common Stock sold by each of them was offered to the public
exceeds the amount of any damages which they would
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have otherwise been required to pay by reason of such untrue or alleged untrue
statement of omission, but not to exceed the net proceeds received by such
seller on the sale of Restricted Stock covered by such Registration Statement.
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 is not guilty of such fraudulent misrepresentation. The indemnification of
underwriters provided for in this Section 8 shall be on such other terms and
conditions as are at the time customary and reasonably required by such
underwriters and the indemnification of the sellers of Restricted Stock in such
underwriting shall, at the sellers' request, be modified to conform to such
terms and conditions. Upon the reasonable request of any stockholder selling
Restricted Stock pursuant to a registration statement or any underwriter of such
stock, the Company shall obtain, if reasonably available, an insurance policy
covering the risks described above in this Section 8 in an amount and with a
deductible reasonably requested by such seller or underwriter and naming such
seller, any underwriter of such stock and any person controlling such seller or
underwriter as beneficiaries. The costs of obtaining and maintaining any such
insurance shall be borne by the Company.
SECTION 9 CHANGES IN COMMON STOCK. If, and as often as, there are any
changes in the Common Stock by way of stock split, stock dividend, combination
or reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted by this Agreement shall continue with respect to the Common Stock as so
changed.
SECTION 10 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each of the other parties hereto as follows (which
representations and warranties shall survive the execution and delivery of this
Agreement):
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the Certificate of Incorporation or By-laws of the Company, or any
provision of any indenture, agreement or other instrument to which it or any of
its properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Company or any of its subsidiaries.
(b) This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
SECTION 11 RULE 144 REPORTING. The Company agrees with each of the other
parties hereto as follows:
(a) The Company shall make and keep public information available as
those terms are understood and defined in Rule 144 under the Securities Act, at
all times from and after
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90 days following the effective date of the first registration of the Company
under the Securities Act of an offering of its securities to the general public.
(b) The Company shall file with the Commission in a timely manner all reports
and other documents as the Commission may prescribe under Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (the "Exchange Act") at any time when the
Company is subject to such reporting requirements of the Exchange Act.
(c) The Company shall furnish to each holder of Restricted Securities forthwith
upon request (i) a written statement by the Company as to its compliance with
the reporting requirements of Rule 144, and of the Securities Act and the
Exchange Act (at any time when it is subject to such reporting requirements),
(ii) a copy of the most recent annual or quarterly report of the Company, and
(iii) such other reports and documents so filed as such holder may reasonably
request to avail itself of any rule or regulation of the Commission allowing a
holder of Restricted Securities to sell any such securities without
registration.
SECTION 12 MISCELLANEOUS.
(a) The obligations under Section 3 and the rights arising under
Sections 5 shall terminate as to an Institutional Investor when (i) such
Institutional Investor is no longer an "affiliate" as used in Rule 144 and (ii)
such Institutional Investor is permitted to sell all Restricted Stock then held
by it pursuant to Rule 144(k).
(b) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. Without limiting the generality of the foregoing, the registration rights
conferred herein on the holders of Restricted Securities shall inure to the
benefit of any and all subsequent holders from time to time of the Restricted
Securities for so long as the certificates representing the Restricted
Securities shall be required to bear the legend specified in Section 2 hereof.
(c) All notices, demands and other communications provided for or
permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier (with receipt
confirmed), courier service or personal delivery:
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1. if to the Company:
TransTechnology Corporation
000 Xxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxxx
with a copy to:
Xxxx Xxxxxx & Parks, LLP
0000 XX Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: F. Xxxxxx X'Xxxxx, Esq.
2. if to WMF:
X. X. Xxxxxxx Mezzanine Fund, L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxx
Xx. Xxxxxx X. X'Xxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx, Esq.
3. if to Albion I:
Albion Alliance Mezzanine Fund I, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx, Esq.
4. If to Albion II:
Albion Alliance Mezzanine Fund II, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx, Esq.
5. if to Equitable:
The Equitable Life Assurance Society of the
United States
c/o Albion Alliance
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx, Esq.
6. if to Fleet:
Fleet Corporate Finance, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
00
00
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx, Esq.
7. If to Citizens:
Citizens Capital Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx, Esq.
or to such other address or addresses as shall have been furnished in writing to
the other parties hereto. Each holder agrees, at all times, to provide the
Company with an address for notices hereunder.
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; when delivered by courier, if
delivered by commercial overnight courier service; if mailed, five Business Days
(as defined in the Purchase Agreement) after being deposited in the mail,
postage prepaid; or if telecopied, when receipt is acknowledged.
(d) THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH,
AND ENFORCED UNDER, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS OR
INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN SUCH STATE.
(e) (I) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AGREES THAT ANY
LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY MAY BE BROUGHT IN THE COURTS OF THE STATE OF
NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK AND HEREBY EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH
COURTS FOR THE PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE
AND ANY CLAIM THAT SUCH COURTS ARE AN INCONVENIENT FORUM. EACH PARTY HEREBY
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF
BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS ADDRESS SET
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FORTH IN SECTION 12(C), SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH
MAILING.
(II) THE COMPANY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. THE COMPANY (X) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF THE PURCHASERS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PURCHASER
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(Y) ACKNOWLEDGES THAT THE PURCHASERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED
HEREIN.
(f) This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and may not be modified or amended except
in writing executed by the parties hereto in accordance with Section 11.4 of the
Purchase Agreement.
(g) Telefacsimile transmissions of any executed original document
and/or retransmission of any executed telefacsimile transmission shall be deemed
to be the same as the delivery of an executed original. At the request of any
party hereto, the other parties hereto shall confirm telefacsimile transmissions
by executing duplicate original documents and delivering the same to the
requesting party or parties. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) The Company (on the one hand) and the Institutional Investors (on
the other hand) agree that any amendment to the Federal securities laws (and
regulations promulgated thereunder (and related registration forms), and related
state securities laws shall not affect the substantive registration requirements
(and other obligations of the Company) set forth in this Agreement; and,
following any such amendment, the Company shall continue to be required to cause
the registration of Restricted Stock (and pay all Registration Expenses and
provide indemnification) under the Federal securities laws, as amended, in a
manner consistent to carry out the intent and purposes of (and on terms as
similar as practicable as the terms set forth in) this Agreement.
(i) If any one or more of the provisions contained in this Agreement,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions of this Agreement. The parties hereto further agree to
replace such invalid, illegal or unenforceable provision of this Agreement with
a valid, legal and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid, illegal or
unenforceable provision.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
TRANSTECHNOLOGY CORPORATION
By: /S/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
Officer
X. X. XXXXXXX MEZZANINE FUND, L.P.
By: Xxxxxxx XX, L.L.C.,
By: /S/ Xxxxxx X. Xxxxxxxxx, Xx.
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
A Managing Member
ALBION ALLIANCE MEZZANINE FUND I, L.P.
By: Albion Alliance LLC, its
General Partner:
By: /S/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
ALBION ALLIANCE MEZZANINE FUND II, L.P
By: AA MEZZ II GP, LLC, its
General Partner
By: Albion Alliance LLC, its
Sole Member
By: /S/ XXXXX X. XXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
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THE EQUITABLE LIFE ASSURANCE SOCIETY OF
THE UNITED STATES
By: /S/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Investment Officer
FLEET CORPORATE FINANCE, INC.
By: /S/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
CITIZENS CAPITAL INC.
By: /S/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
19
