REGISTRATION RIGHTS AGREEMENT
Dated as of:
December 18, 1995
By and Between
▇▇▇▇▇ Products Co.
and
Mellon Bank, N.A., as trustee for the ▇▇▇▇▇
Products Co. Pension Plan
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Common Stock
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of December 18, 1995, by and between ▇▇▇▇▇ Products Co., a
Pennsylvania corporation (the "Company"), and Mellon Bank, N.A., as trustee for
the ▇▇▇▇▇ Products Co. Pension Plan (the "Shareholder").
This Agreement is made in connection with, is a condition precedent to,
and forms part of the consideration for, a Subscription Agreement, dated as of
December 18, 1995, by and between the Company and the Shareholder (the
"Subscription Agreement"). In order to induce the Shareholder to enter into the
Subscription Agreement, the Company has agreed to provide registration rights
with respect to the Shares.
The parties hereto, intending to be legally bound, hereby agree as
follows:
1. Securities Subject to this Agreement.
(a) Definitions.
(i) The term "Shares" means the Common Stock issued by the
Company pursuant to the Subscription Agreement.
(ii) The terms "Registrable Securities" and "Restricted
Securities" mean each of the following: (1) the Shares, and (2) any other
securities issued in exchange for or as dividends on, or by way of a split of,
the Shares.
(b) Restricted Securities. For the purposes of this Agreement,
Restricted Securities will cease to be Restricted Securities when (i) a
registration statement filed pursuant to the Securities Act of 1933, as amended
(the "Act"), covering such Restricted Securities has been declared effective and
such securities have been disposed of pursuant to such effective registration
statement, (ii) they are distributed to the public pursuant to Rule 144 (or any
similar provision then in force) under the Act, (iii) they are eligible to be
sold pursuant to Rule 144(k) under the Act without limitation as to the amount
of securities to be sold or as to the manner of sale, or (iv) they have been
otherwise transferred and the Company has delivered new certificates or other
evidences of ownership for them not subject to any legal or other restriction on
transfer and not bearing the following or any similar legend:
The securities evidenced by this certificate have not been registered
under the Securities Act of 1933 or under any applicable state
securities law, and may not be transferred except upon delivery to the
Corporation of an opinion of counsel satisfactory in form and substance
to it that such transfer will not violate the Securities Act of 1933,
as amended, or any applicable state securities law.
(c) Registrable Securities. As to any particular Registrable
Securities, such Securities will cease to be Registrable Securities when they
cease to be Restricted Securities.
2. Demand Registrations.
(a) Request for Registration. At any time after the date hereof
the Shareholder may make a written request for registration under the Act of all
or part of its Registrable Securities (the "Demand Registration"). No other
party, including the Company, shall be permitted to offer securities under any
such Demand Registration unless all shares of Registrable Securities requested
to be included by the Shareholder shall be so included. If the number of shares
of Registrable Securities to be offered hereunder is restricted, the number of
shares to be included in the offering shall be determined pursuant to the
provisions of subsection 2(d) hereof.
(b) Limitations on Demand. Notwithstanding the foregoing, the
Company shall not be obligated to file a registration statement relating to the
Demand Registration under Section 2(a) hereof if counsel to the Company renders
an opinion addressed to the Company and the Shareholder to the effect that
registration is not required for the proposed transfer of Registrable
Securities. In addition, the Company may delay in filing a registration
statement relating to the Demand Registration for not more than 90 days if (i)
the Company has filed, or is about to file, a registration statement relating to
the offering of any of the Company's securities (the "Company's Securities"),
and the managing underwriter of such offering is of the opinion that the filing
of a registration statement with respect to the Demand Registration would
adversely affect the offering by the Company of the Company's Securities, or
(ii) the Company's ability to pursue a pending significant business opportunity
(representing in excess of 10% of the Company's consolidated revenues or total
assets) might be materially adversely affected by the filing of a registration
statement with respect to the Demand Registration, whether due to the
requirement that the Company disclose material non-public information about the
Company in connection with such registration or for other reasons.
(c) Effective Registration and Expenses. A registration will not
count as a Demand Registration under Section 2(a) hereof until it has become
effective; provided, however, that if the Shareholder shall cause or request the
Company to withdraw any such registration statement, the Shareholder may
thereafter request the Company to reinstate such registration statement, if
permitted under the Act, or to file another Demand Registration, in accordance
with the procedures set forth herein, only upon agreeing in writing to reimburse
the Company for all Registration Expenses (excluding internal expenses) over and
above those Registration Expenses which the Company would have incurred had such
Demand Registration not been withdrawn. The Company shall cause the registration
statement relating to any Demand Registration to remain effective until the
earlier of three (3) years from the date hereof or such earlier date upon which
all of the Registrable Securities cease to be Restricted Securities. Except as
provided above, the Company will pay all Registration Expenses (as defined in
Section 6 hereof) in connection therewith, whether or not it becomes effective.
The Company shall not be required to undergo or pay for any special audit, the
cost of which would exceed $20,000, to effect any registration statement under
this Section 2, and if such a special audit would be required in order to file
or effect a registration statement hereunder, the Company shall be entitled to
delay the filing or effectiveness of such registration statement until a
reasonable period of time following the completion of such audit in the ordinary
course of the Company's activities; provided, however, that the Company shall
not
be entitled to delay the filing or effectiveness of such registration statement
if the Shareholder agrees to pay for the cost of any such special audit.
(d) Priority on Demand Registrations.
If the Shareholder so elects, the offering of Registrable
Securities pursuant to the Demand Registration shall be in the form of an
underwritten offering, provided, however, that such offering shall be for a
minimum of 200,000 shares of Registrable Securities, unless such number shall be
reduced by the managing underwriter or underwriters in accordance with this
paragraph. If the managing underwriter or underwriters of such offering advise
the Company and the Shareholder in writing that in its or their opinion the
number of Registrable Securities requested to be included in such offering would
materially and adversely affect the success of such offering or the price of the
Registrable Securities to be offered, the number of Registrable Securities to be
registered shall be reduced by the managing underwriter or underwriters. If all
of the Registrable Securities requested to be included by the Shareholder in the
Demand Registration have been included, the Company shall be entitled to include
that number of shares of its unissued Common Stock or other securities as are
consented to by the managing underwriter or underwriters, and security holders
of the Company other than the Shareholder exercising "piggy-back" registration
rights may include that number of securities as are consented to by the managing
underwriter or underwriters, provided that, in the opinion of the managing
underwriter or underwriters, the inclusion by the Company of such shares of
Common Stock or other securities and the inclusion of such other securities by
the security holders exercising "piggy-back" registration rights would not
materially and adversely affect the success of the offering of the Registrable
Securities or the price of the Registrable Securities to be offered.
(e) Selection of Underwriters. If the Demand Registration is in
the form of an underwritten offering, the Company shall select and obtain the
investment banker or investment bankers and manager or managers that will
administer the offering; provided that such investment bankers and managers must
be approved by the Shareholder, which approval shall not be unreasonably
withheld.
3. Piggy-Back Registration
If the Company proposes to file a registration statement under the Act
with respect to an offering by the Company for its own account of its Common
Stock (other than a registration statement on Form ▇-▇, ▇-▇ or S-14 (or any form
substituting therefor) or filed in connection with an exchange offer or an
offering of securities solely to the Company's existing stockholders or
employees) at any time, on or after the date hereof, the Company shall in each
case give written notice of such proposed filing to the Shareholder at least
twenty days before the anticipated filing date, and such notice shall offer the
Shareholder the opportunity to register such number of Registrable Securities as
the Shareholder may request in writing within ten days after receipt of such
notice. The Company shall use reasonable efforts to cause the managing
underwriter or underwriters of a proposed underwritten offering to permit the
Shareholder to include such securities in such offering on the same terms and
conditions as any similar securities of the Company included therein.
Notwithstanding the foregoing, if the managing underwriter or underwriters of
such offering deliver a written opinion to the Shareholder to the effect that
the total amount
of securities which the Shareholder, the Company and any other persons or
entities intend to include in such offering would materially and adversely
affect the success of such offering, then the amount of securities to be offered
for the account of the Shareholder shall be reduced to the extent necessary to
reduce the total amount of securities to be included in such offering to the
amount recommended by such managing underwriter; provided that if securities are
being offered for the account of other persons or entities as well as the
Company, such reduction shall not represent a greater fraction of the number of
securities requested to be registered by the Shareholder than the fraction of
similar reductions imposed on such other persons or entities over the amount of
securities requested to be registered by such holders. In connection with a
piggy-back registration, the Company will bear all Registration Expenses.
4. Holdback Agreements
(a) Restrictions on Public Sale by Holder of Registrable
Securities. To the extent not inconsistent with applicable law, the Shareholder
agrees not to effect any public sale or distribution of the issue being
registered or a similar security of the Company, or any securities convertible
into or exchangeable or exercisable for such securities, including a sale
pursuant to Rule 144 under the Act, during the 14 days prior to, and during the
90-day period beginning on, the effective date of the registration statement
referred to in Section 2 or Section 3 hereof (except as part of the
registration) or the commencement of a public distribution of securities
pursuant to such registration statement.
(b) Restrictions on Public Sale by the Company and Others. The
Company agrees not to effect, pursuant to a firm commitment underwriting, on its
own behalf or for the benefit of any other security holder, any public sale or
distribution of any securities similar to those being registered, or any
securities convertible into or exchangeable or exercisable for such securities
(other than any such sale or distribution of such securities in connection with
any merger or consolidation by the Company or any subsidiary thereof or the
acquisition by the Company or a subsidiary thereof of the capital stock or
substantially all of the assets of any other person), during the 14 days prior
to, and during the 90-day period beginning on the effective date of the
registration statement referred to in Section 2 or 3 hereof or the commencement
of a public distribution of the Registrable Securities pursuant to any such
registration statement.
5. Registration Procedures
(a) Whenever the Shareholder has requested that any Registrable
Securities be registered pursuant to Section 2 or 3 hereof, the Company will use
its best efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof as
promptly as reasonably practicable, and in connection with any such request, the
Company shall commence, no later than 60 days from the date of such Shareholder
request, the necessary steps to effect such registration and sale, and the
Company will, as expeditiously as possible:
(i) furnish to the Shareholder, and if requested, to the
Shareholder's investment adviser, prior to filing a registration statement,
copies of such registration
statement as proposed to be filed, and thereafter such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto), the prospectus included in such registration
statement (including each preliminary prospectus) and such other documents as
the Shareholder may reasonably request in order to facilitate the disposition of
such Registrable Securities owned by the Shareholder;
(ii) use its best efforts to register or qualify such
Registrable Securities under the state securities or blue sky laws of such
jurisdictions, not to exceed ten in number, as the Shareholder reasonably
requests, or, in the event of a firm commitment underwritten offering, such
larger number of jurisdictions as the managing underwriter or underwriters shall
reasonably request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable the Shareholder to consummate the
disposition in such jurisdictions of such Registrable Securities owned by the
Shareholder; provided that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (ii), (B) subject itself to taxation
in any such jurisdiction, or (C) consent to general service of process in any
such jurisdiction;
(iii) use reasonable efforts to cause the Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company to enable the
Shareholder to consummate the disposition of such Registrable Securities;
(iv) notify the Shareholder at any time when a prospectus
relating thereto is required to be delivered under the Act, of the happening of
any event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
made therein, in the light of the circumstances under which they were made, not
misleading, and the Company will prepare a supplement or amendment to such
prospectus as soon as reasonably practicable thereafter (except that the Company
may avoid supplementing or amending such prospectus for up to 30 days when such
non-disclosure is in the interests of the Company) so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an 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;
(v) enter into and perform customary agreements (including,
without limitation, an underwriting agreement containing customary
representations, underwriters compensation and indemnity and other customary
terms and conditions) and take such other actions as are reasonably required in
order to expedite or facilitate the disposition of such Registrable Securities;
(vi) make available for inspection by the Shareholder, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by the
Shareholder or any such underwriter (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate documents and
properties and other pertinent information of the
Company (collectively, the "Records") as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all pertinent information reasonably
requested by any such Inspector in connection with such registration statement.
Records which the Company determines, in good faith, to be confidential and
which it notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (A) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in the registration statement, (B) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, or (C) the information in such Records has been
made generally available to the public. The seller of Registrable Securities
agrees that it will, upon learning that disclosure of such Records is sought in
a court of competent jurisdiction, give notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(vii) in the event such sale is pursuant to an underwritten
offering, use reasonable efforts to obtain a "cold comfort" letter from the
Company's independent certified public accountants in customary form and
covering such matters of the type customarily covered by "cold comfort" letters
as the Shareholder or the managing underwriter reasonably requests;
(viii) use reasonable efforts to obtain an opinion or
opinions from counsel for the Company in customary form addressed to the
managing underwriter or underwriters, if any, and, in the event of an
underwritten public offering, the Shareholder if it requests such an opinion or
opinions;
(ix) otherwise use reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering a period of twelve months, beginning within three months after the end
of the fiscal quarter in which the registration statement becomes effective,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Act; and
(x) use reasonable efforts to cause all such Registrable
Securities to be listed on each securities exchange, if any, on which similar
securities issued by the Company are then listed, provided that the applicable
listing requirements are satisfied.
(b) The Company may require the Shareholder to furnish to the
Company such information regarding the distribution of the Registrable
Securities as the Company may from time to time reasonably request.
(c) The Shareholder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
5(a)(iv) hereof, the Shareholder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until the Shareholder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 5(a)(iv) hereof, and,
if so directed by the Company, the Shareholder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in the
Shareholder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In
the event the Company shall give any such notice, the Company shall extend the
period during which such registration statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
excluding the date of the giving of such notice pursuant to Section 5(a)(iv)
hereof to and including the date when the Shareholder shall have received the
copies of the supplemented or amended prospectus contemplated by Section
5(a)(iv) hereof.
6. Registration Expenses
Except as set forth in Section 2(c) hereof, all expenses incident
to the Company's performance of or compliance with this Agreement, including
without limitation all registration and filing fees (including all counsel fees
and expenses incident thereto), fees and expenses of compliance with securities
or blue sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities), rating
agency fees, printing expenses, messenger and delivery expenses, internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the fees and
expenses incurred in connection with the listing of the securities to be
registered on each securities exchange on which such securities are required to
be listed, and fees and disbursements of counsel for the Company and its
independent certified public accountants (including the expenses of any special
audit conducted at the Company's option or "cold comfort" letters required by or
incident to such performance), securities acts liability insurance (if the
Company elects to obtain such insurance), the reasonable fees and expenses of
any special experts retained by the Company in connection with such
registration, and fees and expenses of other persons retained by the Company,
but not including any underwriting discounts or commissions attributable to the
sale of Registrable Securities or any out-of-pocket expenses of the Shareholder
(all such expenses being herein called "Registration Expenses"), will be borne
by the Company; provided, however, that, in connection with the registration or
qualification of the Registrable Securities under state securities laws, nothing
herein shall be deemed to require the Company to make any payments to third
parties in order to obtain "lock-up," escrow or other extraordinary agreements.
The Shareholder shall pay the fees and expenses of its own counsel, underwriting
discounts, and commissions attributable to the sale of the Registrable
Securities, and his other out-of-pocket expenses.
7. Indemnification; Contribution
(a) Indemnification by the Company. The Company shall agree to
indemnify, to the fullest extent permitted by law, the Shareholder, its
officers, directors and agents and each person who controls the Shareholder
(within the meaning of the Act), and any investment adviser thereof or agent
therefor, against all losses, claims, damages, liabilities and expenses
(including reasonable attorneys' fees) caused by any untrue or alleged untrue
statement of a material fact contained in any registration statement, prospectus
or preliminary prospectus or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
made therein (in the case of a prospectus, in the light of the circumstances
under which they were made) not misleading, except insofar as the same are
caused by or contained in any information with respect to the Shareholder
furnished to the Company by the Shareholder for use therein or by the
Shareholder's failure to deliver a copy of the registration statement or
prospectus or
any amendments or supplements thereto in accordance with the requirements of the
Act after the Company has furnished the Shareholder with a copy of the same. The
Company will also indemnify any underwriters of the Registrable Securities,
their officers and directors and each person who controls such underwriters
(within the meaning of the Act) to the same extent as provided above with
respect to the indemnification of the Shareholder.
(b) Indemnification by the Shareholder. In connection with any
registration statement in which the Shareholder is participating, the
Shareholder will furnish to the Company in writing such information and
affidavits with respect to the Shareholder as the Company reasonably requests
for use in connection with any such registration statement or prospectus and
shall indemnify, to the fullest extent permitted by law, the Company, its
directors and officers and each person who controls the Company (within the
meaning of the Act) against any losses, claims, damages, liabilities and
expenses (including reasonable attorneys' fees) resulting from any untrue or
alleged untrue statement of a material fact or any omission or alleged omission
of a material fact required to be stated in the registration statement or
prospectus or any amendment thereof or supplement thereto, or necessary to make
the statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, to the extent, but
only to the extent that such untrue statement or omission is caused by or
contained in (i) any information or affidavit with respect to the Shareholder or
the shares or its investment therein furnished by the Shareholder, or (ii) by
the Shareholder's failure to deliver a copy of the prospectus or any amendments
or supplements thereto in accordance with the requirements of the Act after the
Company has furnished the Shareholder with a copy of the same.
(c) Conduct of Indemnification Proceedings. Any person entitled
to indemnification hereunder shall give written notice within 30 days to the
indemnifying party after the receipt by such person of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which such person may claim indemnification or contribution
pursuant to this Agreement and, unless in the reasonable judgment of such
indemnified party a conflict of interest may exist between such indemnified
party and the indemnifying party with respect to such claim, permit the
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to such indemnified party. If the indemnifying party is not
entitled to, or elects not to, assume the defense of a claim, it will not be
obligated to pay the fees and expenses of more than one counsel with respect to
such claim, unless in the reasonable judgment of counsel for such indemnified
party a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the reasonable fees and expenses of
such additional counsel or counsels. The indemnifying party will not be subject
to any liability for any settlement made without its consent.
(d) Contribution. If the indemnification provided for in this
Section 7 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to 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 losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any 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 parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 7(c) hereof, any legal or other fees or expenses reasonably incurred by
such 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 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
If indemnification is available under this Section 7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 7(a) and (b) hereof without regard to the relative fault of
said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 7(d).
8. Participation in Underwritten Registrations
The Shareholder may not participate in any underwritten
registration hereunder unless the Shareholder (a) agrees to sell its securities
on the basis provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements, and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
9. Reporting Requirements
The Company covenants that it will timely file the reports
required to be filed by it under the Act and the Securities Exchange Act of
1934; and it will use reasonable efforts to take such further action as the
Shareholder may reasonably request to the extent required to enable the
Shareholder to sell Registrable Securities without registration under the Act
within the limitation of the exemptions provided by Rule 144 and Rule 144A under
the Act, as such Rules may be amended or any similar rules or regulations
hereafter adopted. Upon the request of the Shareholder, the Company will deliver
to the Shareholder a written statement as to whether the Company has complied
with such requirements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the Shareholder in this Agreement.
(b) Remedies. Each holder of Registrable Securities, in addition
to being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(c) Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given without the written consent of the Shareholder.
(d) Notices. Any notice or other communications required or
permitted hereunder shall be deemed validly given, made or served, when
delivered personally or by telecopier (except for legal process), or upon
receipt by the party entitled to receive the notice when sent by registered or
certified mail, postage prepaid, or by a recognized overnight delivery service,
addressed as follows or to such other address or addresses or telecopier number
as may hereafter be furnished in writing by notice similarly given by one party
to the other parties hereto:
To the Company: ▇▇▇▇▇ Products Co.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇-▇▇▇▇
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
To the Shareholder: Mellon Bank, N.A., as trustee for the ▇▇▇▇▇
Products Co. Pension Plan
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Vice President
Notice given by telecopier shall be deemed delivered on the day the sender
receives telecopier confirmation that such notice was received at the telecopier
number of the addressee. Notice given by mail as set out above shall be deemed
received three days after the date the same is postmarked.
(e) Successors and Assigns. This Agreement shall be binding upon
the successors and assigns of each of the parties hereto and shall inure to the
benefit of their respective successors and permitted assigns. This Agreement
shall not be assignable by the Shareholder, by operation of law or otherwise,
unless such assignee shall enter into a binding agreement with the Company
whereby the assignee shall (i) make representations, warranties and covenants to
the Company substantially similar to the representations, warranties and
covenants made by the Shareholder to the Company in the Subscription Agreement
and otherwise acceptable to the Company, and (ii) agree to make only one request
for Demand Registration hereunder.
(f) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the Commonwealth of
Pennsylvania applicable to contracts made and to be performed wholly therein
without regard to principles of conflict of laws.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
Shareholder shall be enforceable to the fullest extent permitted by law.
(i) Entire Agreement. With respect to the Company and the
Shareholder, this Agreement, together with the Subscription Agreement, is
intended by such parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and understanding of
such parties in respect of the subject matter contained herein and therein.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein and therein. This Agreement and the
Subscription Agreement supersede all prior agreements and understandings between
the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
▇▇▇▇▇ PRODUCTS CO.
By:\S\▇. ▇. ▇▇▇▇▇
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Title: President
MELLON BANK, N.A., AS TRUSTEE
FOR THE ▇▇▇▇▇ PRODUCTS CO.
PENSION PLAN
By:\S\▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President