EXHIBIT 10.50
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REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
MILACRON INC.,
GLENCORE FINANCE AG,
AND
MIZUHO INTERNATIONAL PLC
DATED AS OF MARCH 12, 2004
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TABLE OF CONTENTS
Page
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Section 1. Certain Definitions................................ 1
Section 2. Demand Registration Rights......................... 4
Section 3. Piggy-Back Registration Rights..................... 7
Section 4. Selection of Underwriters.......................... 8
Section 5. Blackout Periods................................... 8
Section 6. Holdback........................................... 9
Section 7. Registration Procedures............................ 10
Section 8. Registration Expenses.............................. 13
Section 9. Rule 144........................................... 13
Section 10. Covenants of Holders............................... 14
Section 11. Indemnification; Contribution...................... 14
Section 12. Injunctions........................................ 16
Section 13. Amendments and Waivers............................. 16
Section 14. Notices............................................ 16
Section 15. Successors and Assigns............................. 18
Section 16. Representations and Warranties of the Company...... 18
Section 17. Counterparts....................................... 18
Section 18. Descriptive Headings............................... 19
Section 19. Choice of Law...................................... 19
Section 20. Severability....................................... 19
Section 21. Entire Agreement................................... 19
Section 22. Further Actions; Reasonable Best Efforts........... 19
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REGISTRATION RIGHTS AGREEMENT
This Agreement (this "Agreement") is made as of this 12th day
of March, 2004 by and among Milacron Inc., a Delaware corporation (the
"Company"), Glencore Finance AG ("Glencore") and Mizuho International plc
("Mizuho", and together with Glencore, the "Holders").
RECITALS:
WHEREAS, pursuant to that certain Note Purchase Agreement,
dated as of March 12, 2004, by and among the Company and the Holders (the "Note
Purchase Agreement"), the Company has agreed to issue and sell to the Holders
$30,000,000 aggregate principal amount of the Company's 20% Secured Step-Up
Series A Notes due 2007 ("Series A Notes") and $70,000,000 aggregate principal
amount of the Company's 20% Secured Step-Up Series B Notes due 2007 ("Series B
Notes", and together with the Series A Notes, the "Notes");
WHEREAS, the Series A Notes are convertible, at any time, into
shares of Common Stock of the Company, par value $1.00 per share (the "Common
Stock");
WHEREAS, the Notes are exchangeable into shares of the 6%
Series B Convertible Preferred Stock, par value $[ ] per share, of the Company
(the "Series B Preferred Stock"), in accordance with the terms and conditions
set forth in the Note Purchase Agreement and the Notes, which in turn are
convertible into shares of the Company's Common Stock, upon the terms and
subject to the limitations and conditions set forth in the Certificate of
Designation with respect to such Series B Preferred Stock; and
WHEREAS, the Company has agreed to grant to the Holders the
registration rights described in this Agreement with respect to the Registrable
Securities (as defined herein).
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the following meanings:
(a) "Affiliate" has the meaning ascribed to such term in
Rule 12b-2 of the Exchange Act.
(b) "Agreement" has the meaning specified in the Preamble
hereof.
(c) "Beneficially Own" has the meaning ascribed to such
term in Rule 13d-3 of the Exchange Act.
(d) "Blackout Period" has the meaning specified in
Section 5 hereof.
(e) "Board" has the meaning specified in Section 5
hereof.
(f) "Business Day" means a day other than a Saturday,
Sunday or other day on which commercial banks are authorized to close under the
laws of the State of New York and the United States of America.
(g) "Common Stock" has the meaning specified in the
Recitals hereof.
(h) "Company" has the meaning specified in the Preamble
hereof.
(i) "Conversion Shares" means, collectively, the shares
of Common Stock of the Company received by Holders upon conversion of the Series
B Preferred Stock.
(j) "Damages" has the meaning specified in Section 11(a)
hereof.
(k) "Demand" has the meaning specified in Section 2(a)
hereof.
(l) "Demand Registration" has the meaning specified in
Section 2(a) hereof.
(m) "Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC thereunder, all as
the same shall be in effect at the time that reference is made thereto.
(n) "Glencore" has the meaning specified in the Preamble
hereof.
(o) "Holder" has the meaning specified in the Preamble
hereof.
(p) "Inspectors" has the meaning specified in Section
7(k) hereof.
(q) "Material Adverse Effect" means, with respect to any
Person, any condition having an effect on such Person that will, or would
reasonably be expected to, prevent or materially impair the ability of the
Company to fulfill its obligations under this Agreement.
(r) "Mizuho" has the meaning specified in the Preamble
hereof.
(s) "NASD" means the National Association of Securities
Dealers, Inc.
(t) "Note Purchase Agreement" has the meaning specified
in the Recitals hereof.
(u) "Notes" has the meaning specified in the Recitals
hereof.
(v) "NYSE" means the New York Stock Exchange, Inc.
(w) "Other Rights Holders" has the meaning specified in
Section 2(f) hereof.
(x) "Person" means any individual, firm, partnership,
corporation (including, without limitation, a business trust), limited liability
company, joint stock company, trust, unincorporated association, joint venture
or other entity, and shall include any successor (by merger or otherwise) of any
such entity.
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(y) "Piggy-Back Request" has the meaning specified in
Section 3(b) hereof.
(z) "Piggy-Back Rights" has the meaning specified in
Section 3(a) hereof.
(aa) "Prospectus" means the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities covered by any Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
(bb) "Records" has the meaning specified in Section 7(k)
hereof.
(cc) "Registrable Securities" means any and all of (i)
Common Stock received by Holders upon conversion of the Series A Notes; (ii) the
Series B Preferred Stock received by Holders upon exchange of the Notes; (iii)
the Conversion Shares; (iv) if the Company has not received Stockholder Approval
on or before July 29, 2004, (A) the Notes and (B) the shares of Serial
Preference Stock into which shares of Common Stock received by Holders of Series
A Notes upon conversion thereof are exchangeable and (v) any securities issued
or distributed in respect of any of the securities identified in clauses (i),
(ii), (iii) or (iv)(B) by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, reorganization, merger,
consolidation or otherwise. Registrable Securities shall cease to be Registrable
Securities when and to the extent that they (i) shall have been Transferred by
Holders pursuant to an effective Registration Statement; (ii) shall have been
sold or transferred in accordance with the requirements of Rule 144 or Rule
144A; (iii) are otherwise transferred, if new certificates or other evidences of
ownership for them not bearing a legend restricting further transfer and not
subject to any stop-transfer order or other restrictions on transfer have been
delivered by the Company and subsequent disposition of such securities does not
require registration or qualification of such securities under the Securities
Act or any state securities laws then applicable or (iv) are no longer
outstanding.
(dd) "Registration Expenses" means any and all reasonable
out-of-pocket expenses incident to performance of or compliance with this
Agreement, including, without limitation, (i) all SEC, NASD and securities
exchange registration and filing fees, (ii) all fees and expenses of complying
with state securities or "blue sky" laws (including fees and disbursements of
counsel for any underwriters in connection with blue sky qualifications of the
Registrable Securities), (iii) all processing, printing, copying, messenger and
delivery expenses, (iv) all fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange pursuant to
Section 7(h) hereof, (v) all fees and disbursements of counsel for the Company
and of its independent public accountants (including the expenses of any special
audits or comfort letters), and (vi) the reasonable fees and expenses of any
special experts retained in connection with a registration under this Agreement,
but excluding any underwriting discounts and commissions and transfer taxes
relating to the sale or disposition of Registrable Securities pursuant to a
Registration Statement.
(ee) "Registration Statement" means any registration
statement (including a Shelf Registration) of the Company referred to in Section
2 or Section 3 hereof, including any Prospectus, amendments and supplements to
any such registration statement, including
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post-effective amendments, and all exhibits and all material incorporated by
reference in any such registration statement.
(ff) "Rights Offering Period" means the 270-day period
beginning on the date immediately following the date on which the Notes are
exchanged for shares of Series B Preferred Stock pursuant to the terms of the
Note Purchase Agreement.
(gg) "Rule 144" means Rule 144 under the Securities Act,
or any similar or successor rules or regulations hereafter adopted by the SEC.
(hh) "Rule 144A" means Rule 144A under the Securities Act,
or any similar or successor rules or regulations hereafter adopted by the SEC.
(ii) "SEC" means the United States Securities and Exchange
Commission and any successor federal agency having similar powers.
(jj) "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC thereunder, all as the same
shall be in effect at the time that reference is made thereto.
(kk) "Series A Notes" has the meaning specified in the
Recitals hereof.
(ll) "Series B Notes" has the meaning specified in the
Recitals hereof.
(mm) "Series B Preferred Stock" has the meaning specified
in the Recitals hereof.
(nn) "Shelf Registration" means a "shelf" registration
statement on an appropriate form pursuant to Rule 415 under the Securities Act
(or any successor rule that may be adopted by the SEC).
(oo) "Stockholder Approval" has the meaning specified in
the Note Purchase Agreement.
(pp) "Transfer" means, with respect to any security, any
direct or indirect sale, transfer, assignment, hypothecation, pledge or any
other disposition of such security or any interest therein.
(qq) "Uncontrolled Event" has the meaning specified in
Section 5 hereof.
(rr) "Underwritten Offering" means an offering in which
securities of the Company are sold to an underwriter for reoffering to the
public pursuant to an effective Registration Statement under the Securities Act.
Section 2. Demand Registration Rights.
(a) Any Holder may, at any time after the expiration of
the Rights Offering Period, request the Company in writing (each such request, a
"Demand") to effect a registration
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with the SEC under and in accordance with the provisions of the Securities Act
of all or part of the Registrable Securities Beneficially Owned by such Holder
(each such registration, a "Demand Registration"). The Demand shall specify the
aggregate number of shares of Registrable Securities requested to be so
registered on behalf of such Holder. Any request received by the Company from a
Holder as provided in this Section 2(a) shall be deemed to be a "Demand" for
purposes of this Agreement, unless the Company, in accordance with the terms of
this Agreement, shall have notified such Holder in writing, prior to its receipt
of such request from such Holder, of its intention to register securities with
the SEC, in which case the request from such Holder shall be governed by Section
3 hereof, not this Section 2. All Demands to be made by a Holder pursuant to
this Section 2(a) and any notifications by the Company pursuant to the preceding
sentence must be based upon a good faith intent of such Holder or the Company,
as the case may be, to effect the sale of securities pursuant to such
registrations as promptly as practicable after the date of the Demand or
notification, as the case may be, in accordance with the terms of this
Agreement. Each Holder shall be entitled to two (2) Demands.
(b) After receipt of a Demand from a Holder, the Company
shall promptly prepare and file a Registration Statement for the Registrable
Securities so requested to be registered and use its commercially reasonable
efforts to cause such Registration Statement to become effective.
(c) Notwithstanding anything in this Agreement to the
contrary, the Company shall not be required to file a Registration Statement for
Registrable Securities pursuant to a Demand:
(i) if the Company shall have previously
effected a Demand Registration at any time during the immediately
preceding one hundred twenty (120) day period;
(ii) if the Company shall have previously
effected a registration of Registrable Securities to be issued and sold
by the Company at any time during the immediately preceding one hundred
twenty (120) day period (other than a registration on Form X-0, Xxxx
X-0 or Form S-3 (with respect to dividend reinvestment plans and
similar plans) or any successor forms thereto);
(iii) during the pendency of any Blackout Period;
(iv) if the Company shall have previously
effected four (4) Demand Registrations pursuant to the terms of this
Agreement;
(v) if the Registrable Securities that are the
subject of the Demand are the subject of an effective Shelf
Registration.
(d) The Company shall be permitted to satisfy its
obligations under this Section 2 by amending (to the extent permitted by
applicable law) any Shelf Registration previously filed by the Company under the
Securities Act so that such Shelf Registration (as amended) shall permit the
disposition (in accordance with the intended methods of disposition specified as
aforesaid) of all of the Registrable Securities for which a Demand shall have
been
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made. Notwithstanding the foregoing, the Company shall have no obligation under
this Agreement to file any Shelf Registration.
(e) A requested Demand Registration shall not be deemed
to count as a Demand Registration described in the last sentence of Section
2(a), Section 2(c)(i) or 2(c)(iv) hereof if: (i) such registration has not been
declared effective by the SEC or does not become effective in accordance with
the Securities Act, (ii) after becoming effective, such registration is
terminated by any stop order, injunction or similar order or requirement of the
SEC or other governmental agency or court for any reason not attributable to a
Holder and does not thereafter become effective, (iii) the conditions to closing
specified in any underwriting agreement entered into in connection with such
Demand Registration are not satisfied or waived, other than by reason of an act
or omission on the part of a Holder, or (iv) the Holder making a Demand shall
have withdrawn its Demand or otherwise determined not to pursue such
registration, provided that, in the case of this clause (iv), such Holder shall
have reimbursed the Company for all of its out-of-pocket expenses incurred in
connection with such Demand.
(f) If the lead managing underwriters of an Underwritten
Offering made pursuant to a Demand shall advise the Holder making a Demand in
writing (with a copy to the Company) that marketing or other factors require a
limitation on the number of shares of Registrable Securities which can be sold
in such offering within a price range acceptable to the Holder, then (i) if the
Company shall have elected to include any securities to be issued and sold by
the Company or sold on behalf of any of the Company's security holders excluding
such Holder ("Other Rights Holders") in such Registration Statement, then the
Company shall reduce the number of securities the Company shall intend to issue
and sell (and, if applicable, the number of securities being sold on behalf of
the Other Rights Holders) pursuant to such Registration Statement such that the
total number of securities being sold by each such party shall be equal to the
number which can be sold in such offering within a price range acceptable to
such Holder, and (ii) if the Company shall not have elected to include any
securities to be issued and sold by the Company or sold on behalf of Other
Rights Holders in such Registration Statement or if the reduction referred to in
the previous clause (i) shall not be sufficient, then, the Holder shall reduce
the number of Registrable Securities requested to be included in such offering
to the number that the lead managing underwriter advises can be sold in such
offering within a price range acceptable to the Holder. The Holder shall not be
required to reduce the number of Registrable Securities requested to be included
in any such offering until the number of securities referred to in the previous
clause (i) shall have been reduced to zero (0); provided, however, that if (A)
the number of securities to be issued and sold by the Company in an Underwritten
Offering made pursuant to a Demand has been reduced to zero (0) pursuant to
clause (i) of this paragraph and (B) the lead managing underwriters of an
Underwritten Offering made pursuant to a Demand shall advise the Holder making a
Demand in writing (with a copy to the Company) that the inclusion of securities
to be issued and sold by the Company in the offering would materially improve
the marketing or pricing of the offering, the lead managing underwriters may, in
their sole reasonable discretion, include in such offering securities to be
issued and sold by the Company and reduce the number of securities to be sold on
behalf of the Holder making a Demand. A requested Demand reduced pursuant to
this Section 2(f) shall count as a Demand Registration described in the last
sentence of Section 2(a), Section 2(c)(i) or 2(c)(iv) hereof. In the event that
a requested Demand Registration so reduced does not result in at least
$5,000,000 in aggregate gross sales proceeds being received by the Holder, such
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requested Demand Registration shall not be deemed to count as a Demand
Registration described in the last sentence of Section 2(a), Section 2(c)(i) or
2(c)(iv) hereof, provided that the Holders shall have reimbursed the Company for
all of its out-of-pocket expenses incurred in the preparation, filing and
processing of the Registration Statement.
(g) Except for exchange and shelf registration rights
granted in connection with private debt transactions made under Rule 144A under
the Securities Act, without the prior consent of a majority in the interest of
the Holders, the Company shall not, from and after the date hereof until the
Registrable Securities are no longer entitled to registration rights hereunder,
grant demand registration rights to any purchaser of the Company's Registrable
Securities or Common Stock that are superior to or pari passu with the rights of
Holders as set forth in this Agreement.
(h) No Holder may participate in any Registration
Statement hereunder unless such Holder (i) agrees to sell its Registrable
Securities on the basis provided in any arrangements approved by the Company and
(ii) completes and executes all reasonable and customary questionnaires, powers
of attorney, indemnities, underwriting agreements and other documents required
under the terms of such arrangements.
Section 3. Piggy-Back Registration Rights.
(a) At any time on or after the expiration of the Rights
Offering Period, whenever the Company shall propose to file a Registration
Statement under the Securities Act relating to the public offering of securities
for sale for cash, the Company shall give written notice to the Holders as
promptly as practicable, but in no event less than fifteen (15) days prior to
the anticipated filing thereof, specifying the approximate date on which the
Company proposes to file such Registration Statement and the intended method of
distribution in connection therewith, and advising Holders of their right to
have any or all of the Registrable Securities then Beneficially Owned by them
included among the securities to be covered by such Registration Statement (the
"Piggy-Back Rights").
(b) Subject to Section 3(c) and Section 3(d) hereof, in
the event that Holders have and shall elect to utilize their Piggy-Back Rights,
the Company shall include in the Registration Statement the Registrable
Securities identified by the Holders in a written request (a "Piggy-Back
Request") given to the Company not later than ten (10) Business Days prior to
the proposed filing date of the Registration Statement. The Registrable
Securities identified in a Piggy-Back Request shall be included in the
Registration Statement on the same terms and conditions as the other securities
included in the Registration Statement.
(c) Notwithstanding anything in this Agreement to the
contrary, Holders shall not have Piggy-Back Rights with respect to (i) a
Registration Statement on Form S-4 or Form S-8 or Form S-3 (with respect to
dividend reinvestment plans and similar plans) or any successor forms thereto or
(ii) a Registration Statement filed in connection with an exchange offer or an
offering of securities solely to employees of the Company.
(d) If the lead managing underwriters selected by the
Company for an Underwritten Offering for which Piggy-Back Rights are requested
shall advise the Company in
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writing that marketing or other factors require a limitation on the number of
shares of securities which can be sold in such offering within a price range
acceptable to the Company, then, (i) such underwriters shall provide written
notice thereof to the Holders and (ii) there shall be included in the offering,
(A) first, all securities proposed by the Company to be sold for its account (or
such lesser amount as shall equal the maximum number determined by the lead
managing underwriters as aforesaid); (B) second, all Registrable Securities
requested to be included in such Registration Statement by Holders, or such
lesser number as shall equal, together with the amount referred to in (A), the
maximum number determined by the lead managing underwriters as aforesaid; and
(C) third, only that number of securities requested to be included by any Other
Rights Holders that such lead managing underwriters reasonably and in good faith
believe will not substantially interfere with (including, without limitation,
adversely affecting the pricing of) the offering of all the securities that the
Company desires to sell for its own account and all the Registrable Securities
that the Holders desire to sell for their own accounts.
(e) Nothing contained in this Section 3 shall create any
liability on the part of the Company to the Holders if the Company for any
reason should decide not to file a Registration Statement for which Piggy-Back
Rights are available or to withdraw such Registration Statement subsequent to
its filing, regardless of any action whatsoever Holders may have taken, whether
as a result of the issuance by the Company of any notice hereunder or otherwise.
(f) A request made by Holders pursuant to their
Piggy-Back Rights to include Registrable Securities in a Registration Statement
shall not be deemed to be a Demand Registration described in the last sentence
of Section 2(a), Section 2(c)(i) or 2(c)(iv) hereof.
Section 4. Selection of Underwriters.
(a) In connection with any Underwritten Offering made
pursuant to a Demand, the Company may, at its sole discretion, select a
nationally recognized book running managing underwriter to manage the
Underwritten Offering with the prior written consent of the Holders (which
consent shall not be unreasonably delayed or withheld); provided, however, that
the Company shall have no obligation to use an underwriter in connection with
any registration made pursuant to a Demand.
(b) In connection with any Underwritten Offering made
pursuant to a Piggy-Back Right, the Company may, at its sole discretion, select
a nationally recognized book running managing underwriter to manage the
Underwritten Offering after consultation in good faith with the Holders;
provided, however, that the Company shall have no obligation to use an
underwriter in connection with any registration made pursuant to a Piggy-Back
Right.
Section 5. Blackout Periods. If (i) within five (5) Business
Days following the exercise by a Holder of a Demand, the Company determines in
good faith and notifies such Holder in writing that the registration and
distribution of Registrable Securities (or the use of the Registration Statement
or related Prospectus) resulting from a Demand received from such Holder would
materially and adversely interfere with any planned or proposed business
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combination transaction involving the Company, or any pending financing,
acquisition, corporate reorganization or any other corporate development
involving the Company or any of its subsidiaries, (ii) following the exercise by
such Holder of a Demand but before the effectiveness of the Registration
Statement, (A) a business combination, tender offer, acquisition or other
corporate event involving the Company is proposed, initiated or announced by
another Person beyond the control of the Company (an "Uncontrolled Event"), (B)
in the reasonable judgment of at least a majority of the members of the Board of
Directors of the Company (the "Board"), the filing or seeking the effectiveness
of the Registration Statement would materially and adversely interfere with such
Uncontrolled Event or would otherwise materially and adversely affect the
Company and (C) the Company promptly so notifies such Holder, or (iii) following
effectiveness of a Registration Statement with respect to a Shelf Registration,
the Company determines in good faith and notifies such Holder in writing that
there is a valid purpose for the suspension of such Registration Statement,
then, in each case, the Company shall be entitled to (x) postpone the filing of
the Registration Statement otherwise required to be filed by the Company
pursuant to Section 2 hereof, or (y) elect that the effective Registration
Statement not be used, in either case for a reasonable period of time, but not
to exceed sixty (60) days after the date that (1) the Demand was made (in the
case of an clause (i) above) or (2) the Company so notifies such Holder of such
determination (in the case of clauses (ii) and (iii) above) (each, a "Blackout
Period"). Any such written notice shall contain a general statement of the
reasons for such postponement or restriction on use and an estimate of the
anticipated delay. The Company shall (a) promptly notify the Holder making a
Demand of the expiration or earlier termination of such Blackout Period and (b)
use its commercially reasonable efforts to effect the Demand Registration as
promptly as practicable after the end of the Blackout Period.
Section 6. Holdback.
(a) If (i) at any time after the expiration of the Rights
Offering Period, the Company shall file a Registration Statement (other than a
registration on Form X-0, Xxxx X-0 or Form S-3 (with respect to dividend
reinvestment plans and similar plans) or any successor forms thereto) with
respect to any shares of its capital stock, and (ii) upon reasonable prior
notice the managing underwriter or underwriters (in the case of an Underwritten
Offering) advise the Company and the Holders in writing that a sale or
distribution of Registrable Securities would adversely impact such offering,
then the Holders shall, to the extent not inconsistent with applicable law,
refrain from effecting any sale or distribution of Registrable Securities during
the period commencing on the effective date of such Registration Statement and
continuing until the sixtieth (60th) day after the effective date of such
Registration Statement; provided, however, that such restriction shall apply to
the Holders only if in connection with such offering, the underwriters require
the directors and executive officers of the Company to refrain from selling the
Company's securities for a like period and on like terms.
(b) If requested by the underwriter or managing
underwriter, as applicable, in any Underwritten Offering, each party hereto
shall agree not to effect any public sale or distribution of such securities as
such underwriter or managing underwriter shall deem advisable during any period
set forth in a lock-up or market stand-off agreement approved by the Company;
provided such agreement is no less favorable to such party than lock-up or
market stand-off agreements entered into by the Company's directors and
executive officers.
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Section 7. Registration Procedures. If and whenever the
Company shall be required to use its commercially reasonable efforts to effect
or cause the registration of any Registrable Securities under the Securities Act
as provided in this Agreement, the Company shall and, with respect to Section
7(m) and Section 7(n), the Holders shall:
(a) prepare and file with the SEC a Registration
Statement with respect to such Registrable Securities on any form for which the
Company then qualifies or that counsel for the Company shall deem appropriate,
and which form shall be available for the sale of the Registrable Securities in
accordance with the intended methods of distribution thereof, and use its
commercially reasonable efforts to cause such Registration Statement to become
and remain effective for a period of time necessary to sell Registrable
Securities registered on such Registration Statement or until such Registrable
Securities have been sold;
(b) prepare and file with the SEC amendments and
post-effective amendments to such Registration Statement and such amendments and
supplements to the Prospectus used in connection therewith as may be necessary
to maintain the effectiveness of such registration or as may be required by the
rules, regulations or instructions applicable to the registration form utilized
by the Company or by the Securities Act for a Shelf Registration or otherwise
necessary to keep such Registration Statement effective for at least one hundred
eighty (180) days and cause the Prospectus as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to otherwise comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement until the earlier of (x) such
180th day or (y) such time as all Registrable Securities covered by such
Registration Statement shall have ceased to be Registrable Securities (it being
understood that the Company at its option may determine to maintain such
effectiveness for a longer period, whether pursuant to a Shelf Registration or
otherwise); provided, however, that a reasonable time before filing a
Registration Statement or Prospectus, or any amendments or supplements thereto
(other than reports required to be filed by it under the Exchange Act), the
Company shall furnish to the Holders, the managing underwriter and their
respective counsel for review and comment, copies of all documents proposed to
be filed;
(c) furnish, without charge, to the Holders and to any
underwriter in connection with an Underwritten Offering such reasonable number
of conformed copies of such Registration Statement and of each amendment and
post-effective amendment thereto (in each case including all exhibits) and such
reasonable number of copies of any Prospectus or Prospectus supplement and such
other documents as Holders or such underwriter may reasonably request in order
to facilitate the disposition of the Registrable Securities by the Holders or
the underwriter (the Company hereby consenting to the use (subject to the
limitations set forth in Section 7(n) hereof) of the Prospectus or any amendment
or supplement thereto in connection with such disposition);
(d) use its commercially reasonable efforts to register
or qualify such Registrable Securities covered by such Registration Statement
under such other securities or "blue sky" laws of such jurisdictions as Holders
shall reasonably request, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this Section 7(d), it
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would not be obligated to be so qualified, to subject itself to taxation in any
such jurisdiction, or to consent to general service of process in any such
jurisdiction;
(e) as promptly as practicable, notify the managing
underwriters (if any) and Holders, at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act within the
appropriate period mentioned in Section 7(b) hereof, of the Company's becoming
aware that the Prospectus included in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and, as
promptly as practicable, prepare and furnish to the Holders a reasonable number
of copies of an amendment or supplement to such Registration Statement or
related Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(f) promptly notify the Holders at any time:
(i) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to the Registration Statement or any post-effective amendment,
when the same has become effective;
(ii) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or any order
preventing the use of a related Prospectus, or the initiation (or any
overt threats) of any proceedings for such purposes;
(iv) of the receipt by the Company of any written
notification of the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation
(or overt threats) of any proceeding for that purpose; and
(v) if at any time the representations and
warranties of the Company contemplated by Section 7(i) below cease to
be true and correct in all material respects;
(g) otherwise comply with all applicable rules and
regulations of the SEC, and make available to Holders an earnings statement that
shall satisfy the provisions of Section 11(a) of the Securities Act, provided
that the Company shall be deemed to have complied with this Section 7(g) if it
shall have complied with Rule 158 under the Securities Act;
(h) use its commercially reasonable efforts to cause all
such Registrable Securities to be listed on the NYSE or any other national
securities exchange or automated quotation system on which the class of
Registrable Securities being registered is then listed, if such Registrable
Securities are not already so listed and if such listing is then permitted under
the rules of such exchange, and to provide a transfer agent and registrar for
such Registrable Securities covered by such Registration Statement no later than
the effective date of such Registration Statement;
-11-
(i) enter into agreements (including, if applicable, an
underwriting agreement and other customary agreements in the form customarily
entered into by other companies in comparable underwritten offerings) and take
all other appropriate and all commercially reasonable actions in order to
expedite or facilitate the disposition of such Registrable Securities and in
such connection, whether or not an underwriting agreement shall be entered into
and whether or not the registration shall be an underwritten registration:
(i) make such representations and warranties to
the Holders and the underwriters, if any, in form, substance and scope
as are customarily made by companies to underwriters in comparable
underwritten offerings;
(ii) obtain opinions of counsel to the Company
and updates thereof (which counsel and opinions shall be reasonably
satisfactory (in form, scope and substance) to the managing
underwriters) addressed to the underwriters covering the matters
customarily covered in opinions requested in comparable underwritten
offerings by the Company;
(iii) obtain "comfort letters" and updates thereof
from the Company's independent certified public accountants addressed
to the Board and the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in
"comfort letters" by independent accountants in connection with
comparable underwritten offerings on such date or dates as may be
reasonably requested by the managing underwriters, or if such offering
is not an Underwritten Offering, the Board;
(iv) provide the indemnification in accordance
with the provisions and procedures of Section 11 hereof to all parties
to be indemnified pursuant to such Section 11 and any other
indemnification customarily required in underwritten public offerings;
and
(v) deliver such documents and certificates as
may be reasonably requested by the Holders and the managing
underwriters, if any, to evidence compliance with Section 7(f) above
and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company;
(j) cooperate with the Holders and the managing
underwriter or underwriters, if any, to facilitate, to the extent reasonable
under the circumstances, the timely preparation and delivery of certificates
representing the securities to be sold under such Registration Statement, and
enable such securities to be in such denominations and registered in such names
as the managing underwriter or underwriters, if any, or the Holders may request
and/or in a form eligible for deposit with the Depository Trust Company;
(k) make available to the Holders, any underwriter
participating in any disposition pursuant to such Registration Statement, and
any attorney, accountant or other agent retained by the Holders or such
underwriter (collectively, the "Inspectors"), reasonable access to appropriate
officers and employees of the Company and the Company's subsidiaries to ask
questions and to obtain information reasonably requested by such Inspector and
financial and other records and other information, pertinent corporate documents
and properties of any of the
-12-
Company and its subsidiaries and Affiliates (collectively, the "Records"), as
shall be reasonably necessary to enable them to exercise their due diligence
responsibility; provided, however, that the Records that the Company determines,
in good faith, to be confidential shall not be disclosed to any Inspector unless
such Inspector signs a confidentiality agreement in form reasonably satisfactory
to the Company or either (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission of a material fact in such
Registration Statement, or (ii) the release of such Records is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction; provided,
further, that any decision regarding the disclosure of information pursuant to
subclause (i) shall be made only after consultation with counsel for the
applicable Inspectors; and provided, further, that the Holders agree that they
shall, promptly after learning that disclosure of such Records is sought in a
court having jurisdiction, give notice to the Company and allow the Company, at
the Company's expense, to undertake appropriate action to prevent disclosure of
such Records;
(l) in the event of the issuance of any stop order
suspending the effectiveness of the Registration Statement or of any order
suspending or preventing the use of any related Prospectus or suspending the
qualification of any Registrable Securities included in the Registration
Statement for sale in any jurisdiction, the Company shall use its commercially
reasonable efforts promptly to obtain its withdrawal;
(m) the Holders shall furnish the Company with such
information regarding them and pertinent to the disclosure requirements relating
to the registration and the distribution of such securities as the Company may
from time to time reasonably request or as shall be required in connection with
the action to be taken by the Company hereunder; and
(n) the Holders shall, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section 7(e)
hereof, forthwith discontinue disposition of Registrable Securities pursuant to
the Prospectus or Registration Statement covering such Registrable Securities
until the Holders shall have received copies of the supplemented or amended
Prospectus contemplated by Section 7(e) hereof, and, if so directed by the
Company, the Holders shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in their possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice.
Section 8. Registration Expenses. Except as otherwise provided
herein, in connection with all registrations of Registrable Securities made
pursuant to a Demand Registration or Piggy-Back Rights, the Company shall pay
all Registration Expenses; provided, however, that the Holders shall pay, and
shall hold the Company harmless from, (i) any underwriting discounts and
commissions and transfer taxes relating to the sale or disposition of
Registrable Securities and (ii) any fees, expenses or disbursements of its
counsel and other advisors.
Section 9. Rule 144. From and after the date hereof, the
Company shall, at all times when the Holders Beneficially Own any Registrable
Securities, take such measures and file and/or make available such information,
documents and reports as shall be required by the SEC as a condition to the
availability of Rule 144.
-13-
Section 10. Covenants of Holders. Each Holder hereby covenants
and agrees that it shall not sell any Registrable Securities in violation of the
Securities Act or this Agreement.
Section 11. Indemnification; Contribution.
(a) The Company shall indemnify and hold harmless each
Holder, their respective officers and directors, and each Person, if any, who
controls such Holder within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act and any agents, representatives or
advisers thereof against all losses, claims, damages, liabilities and expenses
(including reasonable attorneys' fees and expenses and reasonable costs of
investigation) (collectively, "Damages") incurred by such party pursuant to any
actual or threatened action, suit, proceeding or investigation arising out of or
based upon (i) any untrue or alleged untrue statement of material fact contained
in any Registration Statement, any Prospectus, or any amendment or supplement to
any of the foregoing, (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of a Prospectus, in light of the circumstances then
existing) not misleading, or (iii) any violation or alleged violation by the
Company of any United States federal, state or common law rule or regulation
applicable to the Company and relating to action required of or inaction by the
Company in connection with any such registration except in each case insofar as
the same arise out of or are based upon any such untrue statement or omission
made in reliance on and in conformity with information with respect to the
Holders furnished to the Company by the Holders or their counsel expressly for
use therein. Notwithstanding anything in this Agreement to the contrary, the
Company shall not be required to indemnify any Person whose conduct has been
determined by a final non-appealable judgment of a court of competent
jurisdiction to constitute bad faith, gross negligence or willful misconduct.
Subject to Section 11(b) hereof, the Company shall not be responsible hereunder
for the fees and expenses of more than one counsel (together with local counsel,
if any) for the indemnified parties. In connection with an Underwritten
Offering, the Company shall indemnify the underwriters thereof, their officers,
directors and agents and each Person who controls such underwriters (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
to the same extent as provided above with respect to the indemnification of the
Holders.
(b) Any Person entitled to indemnification hereunder
agrees to give prompt written notice to the indemnifying party after the receipt
by such indemnified party of any written notice of the commencement of any
action, suit, proceeding or investigation or threat thereof made in writing for
which such indemnified party may claim indemnification or contribution pursuant
to this Section 11 (provided that failure to give such notification shall not
affect the obligations of the indemnifying party pursuant to this Section 11
except to the extent the indemnifying party shall have been materially
prejudiced as a result of such failure). 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 therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such
-14-
indemnified party under this Section 11 for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the foregoing, if (i) the indemnifying party
shall not have employed counsel reasonably satisfactory to such indemnified
party to take charge of the defense of such action within a reasonable time
after notice of commencement of such action (so long as such failure to employ
counsel is not the result of an unreasonable determination by such indemnified
party that counsel selected pursuant to the immediately preceding sentence is
unsatisfactory) or if the indemnifying party shall not have demonstrated to the
reasonable satisfaction of the indemnified party its ability to finance such
defense, or (ii) the indemnified party shall have reasonably concluded or been
advised by counsel that there may be legal defenses available to such
indemnified party which could result in a conflict of interest for such counsel
or prejudice the prosecution of the defenses available to such indemnified
party, then such indemnified party shall have the right to employ separate
counsel of its choosing, at the expense of the indemnifying party. No
indemnifying party shall consent to entry of any judgment or enter into any
settlement without the consent (which consent, in the case of an action, suit,
claim or proceeding exclusively seeking monetary relief, shall not be
unreasonably withheld) of the applicable indemnified party.
(c) If the indemnification from the indemnifying party
provided for in this Section 11 is unavailable to an indemnified party hereunder
in respect of any Damages referred to therein, then the indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such Damages in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified party in connection with the actions or omissions which
resulted in such Damages, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action or omission. The
amount paid or payable by a party as a result of the Damages referred to above
shall be deemed to include, subject to the limitations set forth in Section
11(b) hereof, any legal and other fees and expenses reasonably incurred by such
indemnified party in connection with any investigation or proceeding. The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 11(c) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 11(c). Any underwriter's
obligations in this Section 11(c) to contribute shall be several in proportion
to the number of Registrable Securities underwritten by them and not joint.
Notwithstanding the provisions of this Section 11(c), no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any Damages which
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. If indemnification is available
under this Section 11, the indemnifying parties shall indemnify each indemnified
party to the fullest extent provided in Section 11(a) hereof
-15-
without regard to the relative fault of such indemnifying parties or indemnified
party or any other equitable consideration provided for in this Section 11(c).
(d) The provisions of this Section 11 shall be in
addition to any liability which any party may have to any other party and shall
survive any termination of this Agreement. The indemnification provided by this
Section 11 shall survive the Transfer of such Registrable Securities by the
Holders and shall remain in full force and effect irrespective of any
investigation made by or on behalf of an indemnified party.
Section 12. Injunctions. EACH PARTY HERETO ACKNOWLEDGES AND
AGREES THAT IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE
PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH ITS SPECIFIC
TERMS OR WERE OTHERWISE BREACHED. THEREFORE, EACH PARTY SHALL BE ENTITLED TO AN
INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OF THE PROVISIONS OF THIS
AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF IN ANY
COURT HAVING JURISDICTION, SUCH REMEDY BEING IN ADDITION TO ANY OTHER REMEDY TO
WHICH SUCH PARTY MAY BE ENTITLED AT LAW OR IN EQUITY.
Section 13. Amendments and Waivers. No amendment,
modification, supplement, termination, consent or waiver of any provision of
this Agreement, nor consent to any departure herefrom, shall in any event be
effective unless the same is in writing and is signed by the party against whom
enforcement of the same is sought. Any waiver of any provision of this Agreement
and any consent to any departure from the terms of any provision of this
Agreement shall be effective only in the specific instance and for the specific
purpose for which given.
Section 14. Notices. All notices, consents, requests, demands
and other communications hereunder must be in writing, and shall be deemed to
have been duly given or made: (i) when delivered in person; (ii) three (3) days
after deposited in the United States mail, first class postage prepaid; (iii) in
the case of telegraph or overnight courier services, one (1) Business Day after
delivery to the telegraph company or overnight courier service with payment
provided; or (iv) in the case of telex or telecopy or fax, when sent,
verification received; in each case addressed as follows:
if to the Company:
Milacron Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
with a copy to:
-00-
Xxxxxxx, Xxxxxx & Xxxxx LLP
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
if to Glencore Finance AG:
Glencore Finance AG
Xxxxxxxxxxxxxxxxx 0
XX-0000 Xxxx
XXXXXXXXXXX
Tel: 000 00 00 000 0000
Fax: 000 00 00 000 0000
Attention: Xxxxxx Xxxxxx
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
if to Mizuho International plc
Mizuho International plc
Xxxxxxx House
Xxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XXXXXX XXXXXXX
Tel: 000 00 000 000 0000
Fax: 000 00 000 000 0000
Attention: Xxxxxxx Xxxxxxx
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
-17-
Section 15. Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties hereto, including, without the need for an express assignment or any
consent by the Company thereto, subsequent holders of Registrable Securities.
The Company hereby agrees to extend the benefits of this Agreement to any holder
of Registrable Securities and any such holder of Registrable Securities may
specifically enforce the provisions of this Agreement as if an original party
hereto.
Section 16. Representations and Warranties of the Company. The
Company represents and warrants to the other parties hereto as follows:
(a) Such party is duly organized and validly existing
under the laws of the State of Delaware.
(b) Such party has full corporate power and authority to
enter into this Agreement and to carry out and perform its obligations
hereunder. The execution, delivery and performance by such party of this
Agreement have been duly authorized and approved by all necessary corporate
action. This Agreement has been duly authorized, executed and delivered by such
party and constitutes the legal, valid and binding obligation of such party
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether considered in
a proceeding in equity or at law.
(c) The execution, delivery and performance by such party
of its obligations under this Agreement, and compliance by such party with the
terms and conditions hereof will not (i) violate, with or without the giving of
notice or the lapse of time, or both, or require any registration,
qualification, approval or filing (other than registrations, qualifications,
approvals and filings that have already been made or obtained) under, any
provision of law, statute, ordinance or regulation applicable to it or any of
its subsidiaries other than those that would not have a Material Adverse Effect
and (ii) conflict with, or require any consent or approval under, or result in
the breach or termination of any provision of, or constitute a default under, or
result in the acceleration of the performance of the obligations of such party
or any of its subsidiaries under, or result in the creation of any claim, lien,
charge or encumbrance upon any of the properties, assets or businesses of such
party or any of its subsidiaries pursuant to (x) its organizational documents,
(y) to the best of the Company's knowledge, any order, judgment, decree, law,
ordinance or regulation applicable to it or any of its subsidiaries or (z) any
material contract, instrument, agreement or restriction to which it or any of
its subsidiaries is a party or by which it or any of its subsidiaries or any of
its respective assets or properties is bound.
Section 17. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties.
-18-
Section 18. Descriptive Headings. The descriptive headings
used herein are inserted for convenience of reference only and are not intended
to be part of or to affect the meaning or interpretation of this Agreement.
Section 19. Choice of Law. THIS AGREEMENT SHALL BE CONSTRUED,
INTERPRETED AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF.
Section 20. Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, shall be 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 contained herein shall
not be in any way impaired thereby, it being intended that all remaining
provisions contained herein shall not be in any way impaired thereby.
Section 21. Entire Agreement. This Agreement, including any
schedules, exhibits or attachments referred to herein, is intended by the
parties as a final expression and a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter hereof. There are no restrictions, promises, warranties or undertakings
with respect to the subject matter hereof, other than those set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
Section 22. Further Actions; Reasonable Best Efforts. Each
Holder shall use its reasonable best effort to take or cause to be taken all
appropriate action and to do or cause to be done all things reasonably
necessary, proper or advisable under applicable law and regulations to assist
the Company in the performance of its obligations hereunder, including, without
limitation, the preparation and filing of any Registration Statements pursuant
to any Demand.
-19-
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
MILACRON INC.,
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President-Finance and
Chief Financial Officer
GLENCORE FINANCE AG
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
MIZUHO INTERNATIONAL PLC
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Attorney
