FORM OF REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is entered into as of
March 2, 2001, by and between MagneTek, Inc., a Delaware corporation (the
"COMPANY"), each person whose name and address are set forth in SCHEDULE I
attached hereto (each an "INVESTOR" and together the "INVESTORS").
RECITALS
WHEREAS, the Investors were each holders of shares of the capital stock of
ADS Power Resource, Inc., a Texas corporation ("ADS");
WHEREAS, pursuant to the terms and conditions of that certain Agreement and
Plan of Merger, dated as of March 2, 2001 by and among the Company, ADS, ADS
Acquisition Company, Inc. ("ADS ACQUISITION") and the Investors (the "MERGER
AGREEMENT"), at the Effective Time (as defined in the Merger Agreement) each
Investor became a holder of shares of the common stock, par value $0.01 per
share, of the Company ("COMMON STOCK"); and
WHEREAS, in connection with entering into the Merger Agreement, the Company
agreed to grant the Investors certain registration rights with respect to the
shares of Common Stock issued to the Investors at the Effective Time pursuant to
the Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. DEFINITIONS
The following terms, as used herein, shall have the following meanings:
"COMMISSION" means the Securities and Exchange Commission.
"DEMAND REGISTRATION RIGHTS" means the rights of the Rights Holders to have
their Registrable Shares registered on the terms and conditions of this
Agreement pursuant to a Registration Statement under the Securities Act that is
filed by the Company as contemplated in Section 2.02 of this Agreement.
"EFFECTIVE TIME" has the meaning set forth in the Merger Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder, as they each may, from time to
time, be in effect.
"MERGER" means the merger of ADS with and into ADS Acquisition.
"MERGER SHARES" means the aggregate number of shares of Common Stock
received by the Investors in the Merger pursuant to the Merger Agreement in
exchange for the shares of ADS capital stock (calculated and allocated as
provided in the Merger Agreement) that were outstanding at the Effective Time.
"RIGHTS HOLDERS" means the Investors during such time as they hold
Registrable Shares, and any persons or entities to whom the rights granted under
this Agreement are transferred in accordance with Section 12 hereof.
"REGISTRABLE SHARES" means:
(a) the Merger Shares; and
(b) any other securities issued in respect of the Merger Shares
(because of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events);
PROVIDED, HOWEVER, that shares which are Registrable Shares shall cease to be
Registrable Shares:
(i) upon any sale or other transfer of such shares pursuant to a
Registration Statement or Rule 144 under the Securities Act or any similar
provision then in force; or
(ii) if such shares are capable of being distributed pursuant to Rule
144 under the Securities Act subject only to volume limitations; or
(iii) upon any sale or transfer to a person or entity to which,
pursuant to Section 12 of this Agreement, the rights provided by this
Agreement are not transferable.
"REGISTRATION STATEMENT" means a registration statement filed by the
Company with the Commission for a public offering and sale of Common Stock
(other than a registration statement covering only securities proposed to be
issued in exchange for securities or assets of another person or entity or in
connection with an employee benefit plan).
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as they each may, from time to
time, be in effect.
"PIGGY BACK REGISTRATION RIGHTS" means the rights of the Rights Holders to
have their Registrable Shares registered on the terms and conditions of this
Agreement pursuant to a Registration Statement under the Securities Act that is
filed by the Company as contemplated in Subsection 2.01 of this Agreement.
2. REGISTRATION RIGHTS
2.01 PIGGYBACK REGISTRATION. If the Company proposes to file a Registration
Statement for shares of Common Stock to be issued by the Company (other than a
Registration Statement (i) on Form S-4 or Form S-8 or any successor form thereto
or (ii) filed in connection with an exchange offer) (a "PIGGYBACK REGISTRATION
STATEMENT") at any time until the date that such shares cease to be Registrable
Shares then, the Company will, prior to such filing, give written notice to all
Rights Holders of its intention to do so and, upon the written request of Rights
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Holders holding in the aggregate at least a majority of the Registrable Shares
given within twenty (20) days after the Company provides such notice (which
request shall state the intended method of disposition of such Registrable
Shares), the Company shall use its best efforts to cause all Registrable Shares
which the Company has been requested by such Rights Holders to register to be
registered under such Piggy Back Registration Statement; PROVIDED, HOWEVER, that
the Company shall have the right to postpone or withdraw any registration
effected pursuant to this Section 2.01 without incurring any liability for doing
so to any Rights Holder. Subject to Section 2.04 below, if any Registrable
Shares are to be registered pursuant to this Section 2.01, then the Company
shall provide notice of such fact to all Rights Holders, and all Rights Holders
will then have the right to register their Registrable Shares under such Piggy
Back Registration Statement. In the event the Company and its underwriters, if
any, permit all eligible Registrable Shares to be registered under Piggy Back
Registration Statement without any Cutback (as hereinafter defined), and such
Registration Statement (i) is declared effective by the Commission and (ii)
remains effective for the Applicable Registration Period (as hereinafter
defined), then, the Piggy Back Registration Rights under this Section 2.01 and
the Demand Registration Rights under Section 2.02 shall terminate at the end of
such time period.
2.02 DEMAND REGISTRATION. Subject to Section 2.01, at any time after the
date which is one hundred and eighty (180) days after the Effective Date, Rights
Holders holding in the aggregate at least a majority of the Registrable Shares
may request, in writing, that the Company effect the registration under the
Securities Act of all or any portion of the Registrable Shares. If the holders
initiating the registration intend to distribute the Registrable Shares by means
of an underwriting, they shall so advise the Company in their request. Upon
receipt of any such request, the Company shall promptly give written notice of
such proposed registration to all Rights Holders. All Rights Holders shall have
the right, by giving written notice to the Company within twenty (20) days after
the Company provides its notice, to elect to participate in such registration.
In the event such registration is underwritten, the right of other Rights
Holders to participate shall be conditioned on such Rights Holders'
participation in such underwriting. Subject to the provisions of Section 2.04,
all Rights Holders who have elected to participate in the registration may
participate in the registration up to the number of Registrable Shares which
they hold. Thereupon, the Company shall, as expeditiously as practicable, use
its best efforts to effect the registration of the amount of Registrable Shares
so requested to be registered. If a required registration pursuant to this
Section 2.02 is an underwritten offering, the Company may select a managing
underwriter to administer the offering as long as such underwriter is of
recognized standing.
2.03 NUMBER OF DEMANDS. Except as hereinafter set forth in Section 2.05 or
Section 3.03, the Company shall not be required to effect more than one (1)
registration pursuant to Section 2.02 above; PROVIDED, HOWEVER, that no
registration statement filed pursuant to Section 2.02 shall count as a
registration statement that satisfies the Company's registration obligations
under Section 2.02, and such obligations shall continue in full force and
effect, if (i) the Registration Statement is not declared effective by the
Commission within 120 days after the date it was originally filed with the
Commission, or (ii) the Company fails to maintain the effectiveness of the
Registration Statement for the Applicable Registration Period (subject to the
provisions herein regarding Suspension Events).
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2.04 UNDERWRITER CUTBACK. In connection with any registration under Section
2.01 or Section 2.02 above involving an underwriting, the Company shall not be
required to include any Registrable Shares in such registration unless the
holders thereof accept the terms of the underwriting as agreed upon between the
Company and the underwriters selected by it (provided that such terms must be
consistent with this Agreement and the terms customarily included in agreements
of this nature for underwritten public offerings). If in the opinion of the
managing underwriter it is appropriate because of marketing factors to limit the
number of Registrable Shares to be included in the offering, then the Company
shall be required to include in the registration only that number of Registrable
Shares, if any, which the managing underwriter believes should be included
therein. If the number of Registrable Shares to be included in the offering in
accordance with the foregoing is less than the total number of shares which the
holders of Registrable Shares have requested to be included ("CUTBACK"), then
the holders of Registrable Shares who have requested registration and other
holders of securities entitled to include securities in such registration shall
participate in the registration pro rata based upon their total ownership of
Common Stock. If any holder would thus be entitled to include more securities
than such holder requested to be registered, the excess shall be allocated among
other requesting holders pro rata in the manner described in the preceding
sentence.
2.05 DELAY OF DEMAND. If at the time of the receipt of a request to
register Registrable Shares pursuant to Section 2.02 above, the Company is
engaged or plans to file a Registration Statement with the Commission within
forty-five (45) days after the time of the request in a registered public
offering or is engaged in any other activity which, in the good faith
determination of the Company's Board of Directors, would be adversely affected
by the requested registration to the material detriment of the Company, then the
Company may at its option, within five (5) business days after the receipt of
the Registration Request, direct that such request be delayed for a period not
in excess of three (3) months from the effective date of such public offering or
sixty (60) days after the date of commencement of such other material activity,
as the case may be. In the event of any such delay, the time periods within
which the Rights Holders are entitled to exercise their registration rights
under Sections 2.01 and 2.02 shall be extended for a period of time equal to the
duration of such delay.
3. REGISTRATION PROCEDURES
3.01 COMPANY ACTIONS UPON EXERCISE OF REGISTRATION RIGHTS. If and whenever
the Company is required by the provisions of this Agreement to use its best
efforts to effect the registration under the Securities Act of any of the
Registrable Shares, subject to Section 2.05, the Company shall:
(a) as expeditiously as reasonably practicable prepare and file with
the Commission a Registration Statement with respect to such Registrable
Shares and use its best efforts to cause that Registration Statement to
become effective as soon as possible thereafter;
(b) as expeditiously as reasonably practicable prepare and file with
the Commission any amendments and supplements to the Registration Statement
and the prospectus included in the Registration Statement as may be
necessary to keep the Registration Statement effective, in the case of a
firm commitment underwritten public
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offering, until each underwriter has completed the distribution of all
securities purchased by it and, in the case of any other offering,
until the earlier of the sale of all Registrable Shares covered thereby and
one hundred twenty (120) days after the effective date thereof or such
shorter period as such shares remain Registrable Shares (each, an
"APPLICABLE REGISTRATION PERIOD");
(c) as expeditiously as reasonably practicable furnish to each selling
Rights Holder such reasonable numbers of copies of the prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents, as the selling Rights Holder
may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Shares owned by the selling Rights Holder;
and
(d) as expeditiously as reasonably practicable use its best efforts to
register or qualify the Registrable Shares covered by the Registration
Statement under the securities or Blue Sky laws of such states as the
selling Rights Holders shall reasonably request, and do any and all other
acts and things that may be necessary or desirable to enable the selling
Rights Holders to consummate the public sale or other disposition in such
states of the Registrable Shares owned by the selling Rights Holder;
PROVIDED, HOWEVER, that the Company shall not be required in connection
with this Section 3.01(d) to qualify as a foreign corporation or execute a
general consent to service of process in any jurisdiction.
3.02 SUSPENSION EVENTS. Following the effectiveness of a Registration
Statement (and the making of any required filings with any state securities
commissions), the Company may direct the selling Rights Holders to suspend sales
of the Registrable Securities, as provided herein, if one or more of the
following events (each, a "SUSPENSION EVENT") occurs:
(a) an underwritten primary offering by the Company where the Company
is advised by the underwriters for such offering that sale of Registrable
Shares under the Registration Statement would have a material adverse
effect on the primary offering (a "PUBLIC OFFERING SUSPENSION EVENT");
(b) (i) pending negotiations relating to, or consummation of, a
transaction or the occurrence of an event:
(A) that would require additional disclosure of material
information by the Company in the Registration Statement (or such
filings) not otherwise proposed to be disclosed; or
(B) that renders the Company unable to comply with Commission
requirements; or
(ii) a good faith determination by the Company that the
offering of Registrable Securities would:
(A) materially impede, delay or interfere with any proposed
financing, offer or sale of securities, acquisition, corporate
reorganization or other significant transaction involving the
Company; or
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(B) conflict with material business plans of the Company in a
manner not in the best interests of the Company (each, a
"MATERIAL EVENT SUSPENSION"); or
(iii) if at any time the Company would be required to obtain
audited financial statements not being prepared independently of
the Registration Statement, unless the Rights Holders undertake
to pay the Company's expenses in obtaining the requisite
financial statements and an audit is feasible and can be
accomplished with minimal disruption to the Company and its
business ("REQUIRED FINANCIAL DISCLOSURE SUSPENSION").
PROVIDED, HOWEVER, that
(x) in the case of any Public Offering Suspension Event, the period of
suspension shall terminate (A) within forty-five (45) days if the
Registration Statement therefor is not filed with the Commission prior
thereto, (B) if the Registration Statement is filed with the Commission
within such 45 day period, but is not declared effective within the
succeeding 90 days, on the earlier of the termination of such 90-day period
or the withdrawal of such Registration Statement by the Company;
(y) in the case of a Material Event Suspension under subsection (ii),
the duration of the suspension shall terminate on the earlier of the public
announcement of such Suspension Event and the expiration of forty-five (45)
days from the commencement of the suspension and, in the case of a Material
Event Suspension under subsection (i), the Company shall use its best
efforts to cause the duration of the suspension to terminate as soon as
reasonably practicable; and
(z) in the case of Required Financial Disclosure Suspension, the
period of suspension shall terminate when the requisite financial
statements are available.
In case of any Public Offering Suspension Event, Material Event Suspension
or Required Financial Disclosure Suspension, the duration of the Applicable
Registration Period of the suspended Registration Statement shall be extended
for a period of time equal to the duration of the suspension.
3.03 AGREEMENT OF RIGHTS HOLDERS. In the case of a Suspension Event, the
Company shall give written notice (a "SUSPENSION NOTICE") to the selling Rights
Holders to suspend sales of the Registrable Shares so that the Company may
correct or update the Registration Statement (or such filings); PROVIDED,
HOWEVER, that such suspension shall continue no longer than the applicable
period of time set forth in Section 3.02 above. The selling Rights Holders agree
that they will not effect any sales of the Registrable Shares pursuant to such
Registration Statement (or such filings) at any time during the period from the
date they received a Suspension Notice from the Company to such date as of which
the Suspension Period shall expire as provided in clauses (x), (y) and (z) of
Section 3.02 above. If so directed by the Company, selling Rights Holders will
deliver to the Company all copies of the prospectus covering the Registrable
Shares held by them at the time of receipt of the Suspension Notice. The selling
Rights Holders may recommence sales of the Registrable Shares pursuant to the
Registration Statement (or such filings) following further written notice to
such effect (an "END OF SUSPENSION NOTICE") from the
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Company, which End of Suspension Notice shall be accompanied by copies of the
supplemented or amended prospectus necessary to resume such sales.
3.04 HOLDBACK. In the event the managing underwriter in any registration
effected by the Company while the registration rights described in Sections 2.01
and 2.02 may be exercised so requests, the Rights Holders will agree not to
effect any public sale or distribution of the shares of Registrable Securities
held by them (including a sale pursuant to Rule 145) for a period up to 180 days
following the effective date of such registration that so gives rise to a
Suspension Event.
3.05 CESSATION OF OFFERS. Upon receipt of any notice (including any
Suspension Notice) from the Company of:
(a) any Suspension Event;
(b) any request by the Commission for amendments or supplements to a
Registration Statement or for additional information;
(c) any amendment or supplement to the Registration Statement to
comply with the requirements of the Securities Act;
(d) the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose;
(e) the representations and warranties of the Company made in any
underwriting agreement relating to the registration ceasing to be true and
correct in any material respect;
(f) the receipt by the Company of any notification with respect to the
suspension of the qualification of any Registrable Securities registered in
such registration for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose (in which case the cessation
of sales shall pertain only to the applicable jurisdiction);
(g) the happening of any event which makes any statement made in a
Registration Statement or any document incorporated therein by reference
untrue in any material respect or which requires the making of any changes
in any such Registration Statement so that they will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading; or
(h) the Company's reasonable determination that a post-effective
amendment to a registration statement would be appropriate;
the selling Rights Holders shall immediately cease making offers of Registrable
Shares (and shall return all prospectuses) until the Company provides such
selling Rights Holders any required supplemental or amended materials or of
advice in writing that use of the applicable
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Registration Statement may be resumed. In such event, the Company will use its
reasonable efforts promptly to correct or supplement the Registration Statement,
to obtain the lifting of any stop order or otherwise to remove the circumstances
preventing the continuance of offers and sales under the Registration Statement,
subject to the Company's right to delay such actions with respect to any
Suspension Event. The Company shall promptly after such correction or supplement
provide the selling Rights Holders with revised prospectuses and, following
receipt of the revised prospectuses, the selling Rights Holders shall be free to
resume making offers of the Registrable Shares. In such event, however, at the
time the Rights Holders are permitted to resume making such offers the
Applicable Registration Period shall be extended for a number of days equal to
the period during which the Rights Holders were required to cease selling their
Registrable Shares pursuant to this Section 3.04.
4. ALLOCATION OF EXPENSES
The Company will pay all Registration Expenses of any registration under
this Agreement; PROVIDED, HOWEVER, that, except as otherwise provided in Section
3.02, if a registration is withdrawn at the request of the Rights Holders
requesting such registration (other than as a result of information concerning
material adverse developments in the business or financial condition of the
Company which is made known to the Rights Holders after the date on which such
registration was requested) and if the requesting Rights Holders elect not to
have such registration counted as a registration requested under Section 2, the
requesting Rights Holders shall pay the Registration Expenses of such
registration pro rata in accordance with the number of their Registrable Shares
included in such registration (provided such registration was requested pursuant
to Section 2.02 hereof). For purposes of this Section 4, the term "REGISTRATION
EXPENSES" shall mean all expenses incurred by the Company in complying with this
Agreement, including, without limitation, all registration and filing fees,
exchange listing fees, printing expenses, fees and expenses of counsel for the
Company and the reasonable fees and expenses of one counsel selected by the
selling Rights Holders to represent the selling Rights Holders, state Blue Sky
fees and expenses, and the expense of any special audits incidental to or
required by any such registration, but excluding underwriting discounts, selling
commissions and the fees and expenses of any selling Rights Holder's own
counsel, or other out-of-pocket expenses of the Rights Holders or their agents
(other than the counsel selected to represent all selling Rights Holders).
5. INDEMNIFICATION AND CONTRIBUTION
5.01 In the event of any registration under the Securities Act of any
Registrable Shares pursuant to this Agreement, the Company will indemnify and
hold harmless the seller of such Registrable Shares, each underwriter of such
Registrable Shares, and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act or the Exchange Act against
any losses, claims, damages or liabilities, joint or several, to which such
seller, underwriter or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or Blue Sky laws 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 Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or
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supplement to such Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Company will reimburse such seller, underwriter and each such controlling person
for any legal or any other expenses reasonably incurred by such seller,
underwriter or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action as and when incurred by them;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or omission made in such Registration Statement,
preliminary prospectus or final prospectus, or any such amendment or supplement,
in reliance upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such seller, underwriter or controlling person
specifically for use in the preparation thereof; PROVIDED, FURTHER, HOWEVER,
that the foregoing indemnity agreement with respect to any registration
statement or prospectus relating to the Registrable Securities shall not inure
to the benefit of any seller in such offering, its officers, directors or
agents, or controlling persons if:
(a) a copy of a prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) for
such offering was not sent or given by or on behalf of such selling
shareholder to the person ("ASSERTING PERSON") asserting any losses,
claims, damages or liabilities as a result of an untrue statement of a
material fact contained in any registration statement or prospectus
relating to the Registrable Securities (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading and if such prospectus (as so amended or supplemented) would
have cured the defect giving rise to such losses, claims, damages or
liabilities; or
(b) such selling shareholder sold Registrable Securities to the
Asserting Person during the period between the date of a Suspension Notice
and the date of an End of Suspension Notice.
5.02 In the event of any registration under the Securities Act of any of
the Registrable Shares pursuant to this Agreement, each seller of Registrable
Shares, severally and not jointly, will indemnify and hold harmless the Company,
each of its directors and officers and each underwriter (if any) and each
person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, such directors
and officers, underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws 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 a material fact contained in any Registration Statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information relating to such seller furnished in writing
to the Company by or on behalf of such
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seller specifically for use in connection with the preparation of such
Registration Statement, prospectus, amendment or supplement; PROVIDED, HOWEVER,
that the obligations of such Rights Holders hereunder shall be limited to an
amount equal to the proceeds to each Rights Holder of Registrable Shares sold in
connection with such registration. The terms of any underwriting agreement
entered into by the Company to effect a registration of the Registrable
Securities shall require the underwriter to indemnify and hold harmless the
Company, its officers, directors, controlling persons and agents and each
selling Rights Holder on substantially the same basis as that of the
indemnification of the Company by each selling holder as provided in this
Section 5.
5.03 Each party entitled to indemnification under this Section 5
("INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification ("INDEMNIFYING PARTY") promptly after such Indemnified Party has
actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; PROVIDED, HOWEVER, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 5 (except to the extent
such failure to give notice has resulted in increased losses, damages or
liabilities for the Indemnifying Party). The Indemnified Party may participate
in such defense at such party's expense and the Indemnified Party and not the
Indemnifying Party shall bear or be responsible for the expenses thereof,
unless:
(a) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel, or
(b) the named parties to any such proceeding (including any impleaded
parties) include both the Indemnified Party and the Indemnifying Party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them.
No Indemnifying Party, in the defense of any such claim or litigation shall,
except with the consent of each Indemnified Party, consent to entry of any
judgement or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgement or
settle such claim or litigation without the prior written consent of the
Indemnifying Party, which shall not be unreasonably withheld.
5.04 In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either:
(a) any holder of Registrable Shares exercising rights under this
Agreement, or any controlling person of any such holder, makes a claim for
indemnification pursuant to this Section 5 but it is judicially determined
(by the entry of a final judgement or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 5 provides for indemnification
in such case; or
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(b) contribution under the Securities Act may be required on the part
of any such selling Rights Holder or any such controlling person in
circumstances for which indemnification is provided under this Section 5;
then, in each such case, the Company and such Rights Holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportions as is appropriate
to reflect the relative fault of the Indemnifying Party and Indemnified Parties
in connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations;
PROVIDED, HOWEVER, that, in any such case:
(i) no such holder will be required to contribute any amount in excess
of the proceeds to it of all Registrable Shares sold by it pursuant to such
Registration Statement; and
(ii) no person or entity guilty of fraudulent misrepresentation,
within the meaning of Section 11(f) of the Securities Act, shall be
entitled to contribution from any person or entity who is not guilty of
such fraudulent misrepresentation.
6. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING
In the event that Registrable Shares are sold pursuant to a Registration
Statement in an underwritten offering, the Company agrees to enter into an
underwriting agreement containing customary representations and warranties with
respect to the business and operations of an issuer of the securities being
registered and customary covenants and agreements to be performed by such
issuer, including, without limitation, customary provisions with respect to
indemnification by the Company of the underwriters of such offering.
7. INFORMATION BY RIGHTS HOLDER
Each Rights Holder including Registrable Shares in any registration shall
furnish to the Company such information regarding such Rights Holder and the
distribution of such Right Holder's Registrable Shares proposed by such Rights
Holder as the Company may reasonably request in writing and as shall be required
in connection with any registration, qualification or compliance referred to in
this Agreement.
8. "STAND-OFF" AGREEMENT
Each Rights Holder, if requested by the Company and the managing
underwriter of a firmly underwritten offering by the Company of Common Stock or
other securities of the Company pursuant to a Registration Statement, shall
agree not to sell publicly or otherwise transfer, pledge or dispose of any
Registrable Shares or other securities of the Company held by such Rights Holder
for a specified period of time (not to exceed 120 days) following the effective
date of such Registration Statement; PROVIDED, that substantially all officers
and directors of the Company enter into similar agreements.
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9. NO LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS
Nothing contained in this Agreement shall prohibit the Company from
granting to any holder or prospective holder of any securities of the Company
registration rights which would allow such holder or prospective holder to
include securities of the Company in any Registration Statement filed by the
Company.
10. RULE 144 REQUIREMENTS
The Company agrees to:
(a) comply with the requirements of Rule 144(c) under the Securities
Act with respect to current public information about the Company;
(b) use its reasonable efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements); and
(c) furnish to any holder of Registrable Shares upon request:
(i) a written statement by the Company as to its compliance with
the requirements of Rule 144(c) under the Securities Act, and the
reporting requirements of the Securities Act and the Exchange Act (at
any time after it has become 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 of the Company as such
holder may reasonably request to avail itself of any similar rule or
regulation of the Commission allowing it to sell any such securities
without registration.
11. TERMINATION
All of the Company's obligations to register Registrable Shares under this
Agreement shall terminate upon the last to occur of (i) the sale of all
Registrable Shares by the Rights Holders thereof pursuant to this Agreement or
(ii) the earliest date as of which all Registrable Shares have ceased being
Registrable Shares.
12. TRANSFERS OF RIGHTS
This Agreement, and the rights and obligations of each Rights Holder
hereunder, may only be assigned (including assignment by law) by such Rights
Holder to:
(a) any partner of the Rights Holder, if the Rights Holder is a
partnership;
(b) any family member or trust for the benefit of the Rights Holder,
if the Rights Holder is an individual; and
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(c) any entity controlled by, controlling or under common control with
the Rights Holder;
PROVIDED that the transferee provides written notice of such assignment to the
Company and agrees in writing to be bound by the terms and conditions hereof.
13. OTHER PUBLIC OFFERINGS
This Agreement is not intended to and shall not preclude the Company from
listing its Common Stock on any reputable non-United States exchange.
14. NOTICES
Each notice relating to this Agreement shall be in writing and shall be
delivered in person, by overnight air carrier, by registered or certified mail,
by facsimile transmission or by email, to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice,
provided that notices of a change of address shall be effective only upon
receipt thereof):
(a) IF TO COMPANY:
MagneTek, Inc.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Xx.
Telecopy No.: (000) 000-0000
Email Address: xxxxxxxx@xxxxxxxx.xxx
WITH A COPY TO:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxxx Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
Email Address: xxxxxxx@xxxxxxxxxx.xxx
(b) IF TO AN INVESTOR:
to the address set forth on SCHEDULE I, or such other
address or addresses as may from time to time be
furnished in writing to the Company by such Investor.
Unless otherwise specifically provided in this Agreement, a notice shall be
deemed to have been effectively given if mailed by registered or certified mail
to the proper address (with such notice to be effective upon the earlier of
actual receipt or five days after deposit in the mail), if given in person or by
overnight air
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carrier when delivered in person or by overnight air carrier, if given by email
or telecopy upon receipt if confirmed by return telecopy, email or telephonic
confirmation or otherwise; PROVIDED, HOWEVER, that no notice shall be deemed
received on a day that is not a business day in the jurisdiction in which
notices are to be addressed to such party. Any such notice shall not be
effective until the next business day in such jurisdiction.
15. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties hereto
with respect to the transactions contemplated herein and supersedes all previous
oral and written and all contemporaneous oral negotiations, commitments and
understandings.
16. AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended and the observance of any term of
this Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the written consent of the
Company and the holders of a majority of the Registrable Shares. No waivers of
or exceptions to any term, condition or provision of this Agreement, in any one
or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such term, condition or provision.
17. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which shall be one and the same
instrument.
18. SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement.
19. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Texas without reference to conflict of laws
principles thereof.
20. SECTION HEADINGS
The heading of each Section, subsection or other subdivision of this
Agreement is for reference purposes only and shall not limit or control the
meaning thereof.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed on its behalf as of the day and year first above written.
COMPANY:
MAGNETEK, INC.
By: /s/ Xxxx X. Xxxxxxx, Xx.
-------------------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice President and Treasurer
RIGHTS HOLDERS:
/s/ Xxxx Xxxxxx
----------------------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx Xxxxxxx
----------------------------------------------
Xxxxxxx Xxxxxx Xxxxxxx
/s/ Xxxx XxXxxxx
----------------------------------------------
Xxxx XxXxxxx
/s/ Xxxxx Xxxx
----------------------------------------------
Xxxxx Xxxx
/s/ Xx Xxxxx
----------------------------------------------
Xx Xxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxx Xxxxxx
----------------------------------------------
Xxxx Xxxxxx
/s/ Xxx Xxxxxxx
----------------------------------------------
Xxx Xxxxxxx
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/s/ Xxxx Xxxxx
----------------------------------------------
Xxxx Xxxxx
/s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxx Xxxxxx
----------------------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx Xxxxx
----------------------------------------------
Xxxxxxx Xxxxx
M & M Partners Joint
Venture, a Texas general
partnership
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------
Xxxxxxx Xxxxx
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