REGISTRATION RIGHTS AGREEMENT
dated as of May 2, 2001
among
ABC-NACO Inc.
and
THE HOLDERS OF REGISTRABLE SECURITIES REFERRED TO HEREIN
21
NY1 2068814v8
NY1 2068814v8
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of May 2, 2001
among ABC-NACO, INC., a Delaware corporation (the "Company"), and the Persons
named on Schedule 1 as Holders (each a "Holder" and collectively, the
"Holders").
RECITALS
WHEREAS, pursuant to that certain Warrant Purchase Agreement dated as of
May 2, 2001 ("Warrant Purchase Agreement") by and among the Company and the
Holders, Holders purchased warrants exercisable for the purchase of shares of
Common Stock of the Company (as further defined below, the "Warrants"), and the
Company has agreed to provide certain rights to Holders to cause such shares (as
further defined below, the "Registrable Securities") to be registered under the
Securities Act; and
WHEREAS, the parties hereto hereby desire to set forth the Holders' rights
and the Company's obligations to cause the registration of the Registrable
Securities under the Securities Act;
NOW, THEREFORE, in consideration of these premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions and Usage.
As used in this Agreement:
1.1. Definitions.
Agent. "Agent" shall mean the principal placement agent on an agented
placement of Registrable Securities.
Commission. "Commission" shall mean the Securities and Exchange Commission.
Common Stock. "Common Stock" shall mean (i) the common stock, par value $.01
per share, of the Company, and (ii) shares of capital stock of the Company
issued by the Company in respect of or in exchange for shares of such common
stock in connection with any stock dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the Company generally of shares
of such common stock.
Continuously Effective. "Continuously Effective", with respect to a specified
registration statement, shall mean that it shall not cease to be effective and
available for Transfers of Registrable Securities thereunder for longer than
either (i) any ten (10) consecutive business days, or (ii) an aggregate of
fifteen (15) business days during the period specified in the relevant provision
of this Agreement.
Exchange Act. "Exchange Act" shall mean the Securities Exchange Act of 1934.
Excluded Form. "Excluded Form" shall mean a registration statement filed
pursuant to the Securities Act on Form ▇-▇, ▇-▇ or any similar or successor
forms.
Holders. "Holders" shall mean the Persons named on Schedule 1 as Holders of
Registrable Securities and Transferees of such Persons' Registrable Securities
with respect to the rights that such Transferees shall have acquired in
accordance with Section 10, at such times as such Persons shall own Registrable
Securities.
Initial Public Offering. "Initial Public Offering" shall mean first offering of
shares of Common Stock registered pursuant to the Securities Act.
Majority Selling Holders. "Majority Selling Holders" shall mean those Selling
Holders whose Registrable Securities included in such registration represent a
majority of the Registrable Securities of all Selling Holders included therein.
Person. "Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
Piggyback Registration. "Piggyback Registration" shall have the meaning set
forth in Section 4.
Register, Registered and Registration. "Register", "registered", and
"registration" shall refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities
Act, and the declaration or ordering by the Commission of effectiveness of such
registration statement or document.
Registrable Securities. "Registrable Securities" shall mean, subject to Section
10 and Section 12.3: any shares of Warrant Stock. For purposes of this
Agreement, a Person will be deemed to be a Holder of Registrable Securities
whenever such Person has the then-existing right to acquire such Registrable
Securities (by conversion, purchase or otherwise), whether or not such
acquisition has actually been effected.
Registrable Securities then outstanding. "Registrable Securities then
outstanding" shall mean, with respect to a specified determination date, the
Registrable Securities owned by all Holders on such date.
Registration Expenses. "Registration Expenses" shall have the meaning set forth
in Section 8.1.
Securities Act. "Securities Act" shall mean the Securities Act of 1933.
Selling Holders. "Selling Holders" shall mean, with respect to a specified
registration pursuant to this Agreement, Holders whose Registrable Securities
are included in such registration.
Shelf Registration. "Shelf Registration" shall have the meaning set forth in
Section 2.1.
Shelf Registration Statement. "Shelf Registration Statement" shall mean the
registration statement filed with the Commission with respect to the Shelf
Registration.
Transfer. "Transfer" shall mean and include the act of selling, giving,
transferring, creating a trust (voting or otherwise), assigning or otherwise
disposing of (other than pledging, hypothecating or otherwise transferring as
security) (and correlative words shall have correlative meanings); provided
however, that any transfer or other disposition upon foreclosure or other
exercise of remedies of a secured creditor after an event of default under or
with respect to a pledge, hypothecation or other transfer as security shall
constitute a "Transfer".
Underwriters' Representative. "Underwriters' Representative shall mean the
managing underwriter, or, in the case of a co-managed underwriting, the managing
underwriter designated as the Underwriters' Representative by the co-managers.
Violation. "Violation" shall have the meaning set forth in Section 9.1.
Warrants. "Warrants" shall mean the Warrants issued to the initial Holders
pursuant to the Warrant Purchase Agreement, and all Warrants issued upon
transfer, division or combination of, or in substitution for such Warrant or
Warrants.
Warrant Purchase Agreement. "Warrant Purchase Agreement" shall have the meaning
set forth in the Recitals.
Warrant Stock. "Warrant Stock" generally shall mean the shares of Common Stock
issued, issuable or both (as the context may require) upon the exercise of
Warrants until such time as such shares of Common Stock have either been (i)
Transferred in a public offering pursuant to a registration statement filed
under the Securities Act or (ii) Transferred in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof with all transfer restrictions and restrictive legends with
respect to such Common Stock being removed in connection with such transaction.
1.2. Usage.
(i) References to a Person are also references to its assigns and successors
in interest (by means of merger, consolidation or sale of all or
substantially all the assets of such Person or otherwise, as the case may be).
(ii) References to Registrable Securities "owned" by a Holder shall include
Registrable Securities beneficially owned by such Person but which are held of
record in the name of a nominee, trustee, custodian, or other agent, but shall
exclude shares of Common Stock held by a Holder in a fiduciary capacity for
customers of such Person.
(iii) References to a document are to it as amended, waived and otherwise
modified from time to time and references to a statute or other governmental
rule are to it as amended and otherwise modified from time to time (and
references to any provision thereof shall include references to any successor
provision).
(iv) References to Sections or to Schedules or Exhibits are to sections
hereof or schedules or exhibits hereto, unless the context otherwise requires.
(v) The definitions set forth herein are equally applicable both to the
singular and plural forms and the feminine, masculine and neuter forms of the
terms defined.
(vi) The term "including" and correlative terms shall be deemed to be
followed by "without limitation" whether or not followed by such words or words
of like import.
(vii) The term "hereof" and similar terms refer to this Agreement as a
whole.
(viii) The "date of" any notice or request given pursuant to this Agreement
shall be determined in accordance with Section 16.
Section 2. Shelf Registration.
2.1. The Company shall, at its sole cost and expense, file with the
Commission and thereafter shall use its best efforts to cause to be declared
effective, not later than the earlier of (i) ninety (90) calendar days after the
issuance of Series C Cumulative Convertible Participating Preferred Stock,
par value $1.00, of the Company and (ii) one hundred and eighty (180) calendar
days after the date of this Agreement, a registration statement (the "Shelf
Registration Statement"), on a Form S-3 or any successor form thereto, if the
Company is then eligible to use such form, relating to the offer and sale of
Registrable Securities by the Holders thereof, from time to time, in accordance
with the methods of distribution set forth in the Shelf Registration Statement
and Rule 415 under the Securities Act (hereinafter, the "Shelf Registration");
provided, however, that no Holder of Registrable Securities shall be entitled to
have its Registrable Securities covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
2.2. The Company shall use its best efforts to keep the Shelf Registration
Statement Continuously Effective in order to permit the prospectus included
therein to be lawfully delivered by the Holders of Registrable Securities until
all the Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant thereto. The Company shall be deemed not to have used its
best efforts to keep the Shelf Registration Statement Continuously Effective
during the requisite period if it voluntarily takes any action that would result
in Holders of Registrable Securities covered thereby not being able to offer and
sell such Registrable Securities during that period, unless such action is
required by applicable law.
2.3. Notwithstanding any other provisions of this Agreement to the contrary,
the Company shall cause the Shelf Registration Statement and the related
prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, amendment or supplement, (A) to comply in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (B) not to contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
Section 3. Shelf Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof, the following provisions shall
apply:
3.1. The Company shall (A) furnish to each Holder of Registrable Securities,
if applicable, prior to the filing thereof with the Commission, a copy of
the Shelf Registration Statement and each amendment thereof and each supplement,
if any, to the prospectus included therein and, in the event that any Holder of
Registrable Securities, if applicable, is participating in the Shelf
Registration Statement, shall use its best efforts to reflect in each such
document, when so filed with the Commission, such comments as such Holder of
Registrable Securities, if applicable, reasonably may propose; and (B) include
the names of the Holders of Registrable Securities who propose to sell
Registrable Securities pursuant to the Shelf Registration Statement as selling
security holders.
3.2. The Company shall advise (and confirm such advice in writing if
requested by the recipient of the advice) the Holders of Registrable Securities,
if applicable:
(A) when the Shelf Registration Statement or any amendment thereto has
been filed with the Commission and when the Shelf Registration Statement or any
post-effective amendment thereto has become effective;
(B) of any request by the Commission for amendments or supplements to the
Shelf Registration Statement or the prospectus included therein or for
additional information;
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of any
proceedings for that purpose;
(D) of the receipt of the Company or its legal counsel of any notification
with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(E) of the happening of any event that requires the Company to make changes
in the Shelf Registration Statement or the prospectus in order that the Shelf
Registration Statement or the prospectus does not contain an untrue statement of
a material fact nor omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
3.3. The Company shall use its best efforts to obtain the withdrawal at the
earliest possible time of any order suspending the effectiveness of the Shelf
Registration Statement.
3.4. The Company shall furnish to each Holder of Registrable Securities
included within the coverage of the Shelf Registration, without charge, at least
one copy of the Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder of
Securities so requests in writing, all exhibits thereto (including those, if
any, incorporated by reference).
3.5. The Company shall deliver to each Holder of Registrable Securities
included within the coverage of the Shelf Registration, without charge, as many
copies of the prospectus (including each preliminary prospectus) included in the
Shelf Registration Statement and any amendment or supplement thereto as such
person may reasonably request. The Company consents, subject to the provisions
of this Agreement, to the use of the prospectus or any amendment or supplement
thereto included in the Shelf Registration Statement by each of the Selling
Holders of the Registrable Securities in connection with the offering and sale
of the Securities covered by such prospectus or any such amendment or
supplement.
3.6. Prior to any public offering of the shares of Securities, pursuant to
any Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Holders of Registrable Securities included therein and their
respective counsel in connection with the registration or qualification of the
Registrable Securities for offer and sale under the securities or "blue sky"
laws of such states of the United States as any Holder of Registrable Securities
covered by such Shelf Registration Statement; provided, however, that the
Company shall not be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified or (B) take any action which
would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
3.7. The Company shall cooperate with the Holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates representing
such Registrable Securities free of any restrictive legends and in such
denominations and registered in such names as the Holders of Registrable
Securities may request a reasonable period of time prior to sales of the
Registrable Securities pursuant to such Shelf Registration Statement.
3.8. Upon the occurrence of any event contemplated by paragraphs (B) through
(E) of Section 3.2 above during the period for which the Company is required to
maintain an effective Shelf Registration Statement, the Company shall promptly
prepare and file a post-effective amendment to the Shelf Registration Statement
or a supplement to the related prospectus and any other required document so
that, as thereafter delivered to Holders of Registrable Securities, the
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, in light of the circumstances under which they were made,
not misleading. If the Company notifies the Holders of Registrable Securities
then the Holders of Registrable Securities shall suspend use of such prospectus,
and the period of effectiveness of the Shelf Registration Statement provided for
in Section 2 above shall be extended by the number of days from and including
the date of the giving of such notice to and including the date when the Holders
of Registrable Securities shall have received such amended or supplemented
prospectus pursuant to this Section 3.8.
3.9. The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act, no later than forty-five (45) calendar days
after the end of a 12-month period (or ninety (90) calendar days, if such period
is a fiscal year) beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration Statement, which
statement shall cover such 12-month period.
3.10. Each Holder of Registrable Securities to be sold pursuant to the Shelf
Registration Statement shall furnish to the Company such information regarding
such Holder and the distribution of the Registrable Securities as the Company
may from time to time reasonably require and request for inclusion in the Shelf
Registration Statement (and shall promptly correct any information previously
furnished if the inclusion of such information in such Shelf Registration
Statement would be materially misleading), and the Company may exclude from the
Shelf Registration the Registrable Securities of any Holder that unreasonably
fails to furnish such information within a reasonable time after receiving such
request.
3.11. The Company shall enter into such customary agreements (including if
requested an underwriting agreement in customary form) and take all such other
action, if any, as any Holder of Registrable Securities shall reasonably request
in order to facilitate the disposition of the Registrable Securities pursuant to
any Shelf Registration. If an underwriting agreement is entered into pursuant
to this paragraph, the Company shall cause any such agreement to contain
indemnification provisions and procedures substantially similar to those set
forth in Section 9 hereof (or such other procedures acceptable to the Holders of
a majority of the aggregate principal amount of the Registrable Securities
registered under the applicable Shelf Registration Statement and the managing
underwriters, if any) with respect to all parties to be indemnified pursuant to
Section 9 hereof.
3.12. In the case of any Shelf Registration, the Company shall (A) make
reasonably available for inspection by the Holders of Registrable Securities
covered by such Shelf Registration Statements, any attorney, accountant or other
agent retained by such Holders or any such underwriters all relevant financial
and other records, pertinent corporate documents and properties of the Company
and (B) cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by any such
Holders of Registrable Securities or any such underwriter, attorney, accountant
or agent in connection with the Shelf Registration Statement, in each case as
shall be reasonably necessary, in the judgment of any such Holder or any such
underwriter, attorney, accountant or agent referred to in this paragraph, to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of Holders of Registrable Securities by
one counsel designated by and on behalf of such other parties; and provided,
further, that as to any information that is designated in writing by the
Company, in good faith, as confidential at the time of delivery, such
information shall be kept confidential by such Holders or by any such
underwriter, attorney, accountant or other agent.
3.13. In the case of any Shelf Registration, (A) the Company, if reasonably
requested by Holders of a majority of the Registrable Securities covered by such
Shelf Registration, which request shall not be more frequent than once per
fiscal quarter, shall cause its counsel to deliver an opinion and updates
thereof relating to the Securities in customary form addressed to such Holders
of Registrable Securities and dated, in the case of the initial opinion, the
effective date of such Shelf Registration Statement, provided such opinion is
requested prior to the effective date (it being agreed that the matters to be
covered by such opinion shall include such matters as are customarily included
in opinions requested in underwritten offerings); and (B) the Company, if
requested by any majority of Holders of Registrable Securities covered by such
Shelf Registration, shall cause its officers to execute and deliver all
customary documents and certificates and updates thereof reasonably requested.
3.14. In the event that any broker-dealer registered under the Exchange Act
shall underwrite any Registrable Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution" (within
the meaning of the Rules of Fair Practice and the By-Laws of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder
of such Registrable Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Company shall use
its best efforts to assist such broker-dealer in complying with the requirements
of such Rules and By-Laws, including, without limitation, by (A) if such Rules
or By-Laws shall so require, engaging a "qualified independent underwriter" (as
defined in Section 2720 thereof) to participate in the preparation of the
Registration Statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such Shelf Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the yield
of such Securities, (B) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in Section 9
hereof, and (C) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the requirements of the
Rules of Fair Practice of the NASD.
3.15. The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Registrable Securities covered by a
Shelf Registration Statement contemplated hereby.
Section 4. Piggyback Registrations.
4.1. The Company shall notify all Holders of Registrable Securities in
writing at least forty-five (45) calendar days prior to filing any registration
statement under the Securities Act for purposes of effecting a public offering
of securities of the Company (including, but not limited to, registration
statements relating to secondary offerings of securities of the Company, but
excluding registration statements on an Excluded Form or relating to any
employee benefit plan or a corporate reorganization) and shall afford each such
Holder an opportunity to include in such registration statement all or any part
of the Registrable Securities then held by such Holder. Each Holder desiring to
include in any such registration statement all or any part of the
Registrable Securities held by such Holder shall, within twenty (20) calendar
days after receipt of the above-described notice from the Corporation, so notify
the Corporation in writing, and in such notice shall inform the Corporation of
the number of Registrable Securities such Holder wishes to include in such
registration statement. If a Holder decides not to include all of its
Registrable Securities in any registration statement thereafter filed by the
Company, such Holder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
4.2. If the registration statement under which the Company gives notice
under this Section 4 (the "Piggyback Registration") is for an underwritten
offering, the Company shall so advise the Holders of Registrable Securities. In
such event, the right of any such Holder's Registrable Securities to be included
in a registration pursuant to this Section 4 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in such customary form
with the managing underwriter or underwriters selected for such underwriting.
If any Holder disapproves of the terms of any such underwriting, such Holder may
elect to withdraw therefrom by written notice to the Company and the
underwriter, delivered at least five (5) business days prior to the effective
date of the registration statement. Any Registrable Securities excluded or
withdrawn from such underwriting shall be excluded and withdrawn from the
registration.
4.3. If any of the Registrable Securities registered pursuant to any
Piggyback Registration are to be sold in one or more firm commitment
underwritten offerings, and the managing underwriters advise in writing the
Company and the holders of such Registrable Securities that in its or their
opinion or, in the case of a Piggyback Registration not being underwritten, the
Company shall reasonably determine (and notify the holders of Registrable
Securities of such determination), after consultation with an investment banker
of nationally recognized standing, that the number of shares of Common Stock
(including Registrable Securities) proposed to be sold in such offering exceeds
the maximum number of shares of Common Stock that can be sold in such offering,
the Company shall include in such registration only such maximum number of
shares of Common Stock (including Registrable Securities) which, in the opinion
of such underwriter or underwriters, or the Company, as the case may be,
selected in the following order of priority: (A) first, all of the shares of
Common Stock that the Company proposes to sell for its own account, if any, and
(B) second, the securities requested to be included therein, and which the
managing underwriters shall in their reasonable discretion deem advisable,
allocated pro rata, based upon the number of shares of Common Stock that each
such person shall have requested to be included therein.
Section 5. Additional Registration Rights. Except for registration rights
disclosed in Schedule 12.3, if the Company grants registration rights to holders
of any security of the Company which are more favorable to such holders
than the registration rights granted hereunder, then such more favorable
registration rights shall also be deemed to be granted to the Holders of the
Registrable Securities hereunder, and the Company covenants and agrees to take
any and all steps necessary to modify the terms of this Agreement to so provide.
Section 6. Registration Procedures. Whenever required under Section 4 to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as practicable:
(i) Prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use the Company's best efforts to
cause such registration statement to become effective; provided, however, that
before filing a registration statement or prospectus or any amendments or
supplements thereto, including documents incorporated by reference after the
initial filing of the registration statement and prior to effectiveness thereof,
the Company shall furnish to one firm of counsel for the Selling Holders
(selected by Majority Selling Holders) copies of all such documents in the form
substantially as proposed to be filed with the Commission at least four (4)
business days prior to filing for review and comment by such counsel, which
opportunity to comment shall include an absolute right to control or contest
disclosure if the applicable Selling Holder reasonably believes that it may be
subject to controlling person liability under applicable securities laws with
respect thereto.
(ii) Prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act and rules thereunder with respect to the disposition of all
securities covered by such registration statement. If the registration is for
an underwritten offering, the Company shall amend the registration statement or
supplement the prospectus whenever required by the terms of the underwriting
agreement entered into pursuant to Section 4.2.
(iii) Furnish to each Selling Holder of Registrable Securities, without
charge, such numbers of copies of the registration statement, any pre-effective
or post-effective amendment thereto, the prospectus, including each preliminary
prospectus and any amendments or supplements thereto, in each case in conformity
with the requirements of the Securities Act and the rules thereunder, and such
other related documents as any such Selling Holder may reasonably request in
order to facilitate the disposition of Registrable Securities owned by such
Selling Holder.
(iv) Use the Company's best efforts (i) to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such states or jurisdictions as shall be reasonably requested
by the Underwriters' Representative or Agent (as applicable, or if inapplicable,
the Majority Selling Holders), and (ii) to obtain the withdrawal of any order
suspending the effectiveness of a registration statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of the offer
and transfer of any of the Registrable Securities in any jurisdiction, at the
earliest possible moment; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
(v) In the event of any underwritten or agented offering, enter into and
perform the Company's obligations under an underwriting or agency agreement
(including indemnification and contribution obligations of underwriters or
agents), in usual and customary form, with the managing underwriter or
underwriters of or agents for such offering. The Company shall also cooperate
with the Majority Selling Holders and the Underwriters' Representative or Agent
for such offering in the marketing of the Registrable Shares, including making
available the Company's officers, accountants, counsel, premises, books and
records for such purpose, but the Company shall not be required to incur any
material out-of-pocket expense pursuant to this sentence.
(vi) Promptly notify each Selling Holder of any stop order issued or
threatened to be issued by the Commission in connection therewith (and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered.
(vii) Make generally available to the Company's security holders copies of
all periodic reports, proxy statements, and other information referred to in
Section 12.1 and an earnings statement satisfying the provisions of Section
11(a) of the Securities Act no later than 90 days following the end of the
12-month period beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of each registration statement filed
pursuant to this Agreement.
(viii) Make available for inspection by any Selling Holder, any underwriter
participating in such offering and the representatives of such Selling Holder
and Underwriter (but not more than one firm of counsel to such Selling Holders),
all financial and other information as shall be reasonably requested by them,
and provide the Selling Holder, any underwriter participating in such offering
and the representatives of such Selling Holder and Underwriter the opportunity
to discuss the business affairs of the Company with its principal executives and
independent public accountants who have certified the audited financial
statements included in such registration statement, in each case all as
necessary to enable them to exercise their due diligence responsibility under
the Securities Act; provided, however, that information that the Company
determines, in good faith, to be confidential and which the Company advises such
Person in writing, is confidential shall not be disclosed unless such Person
signs a confidentiality agreement reasonably satisfactory to the Company or the
related Selling Holder of Registrable Securities agrees to be responsible for
such Person's breach of confidentiality on terms reasonably satisfactory to the
Company.
(ix) Use the Company's best efforts to obtain a so-called "comfort letter"
from its independent public accountants, and legal opinions of counsel to the
Company addressed to the Selling Holders, in customary form and covering such
matters of the type customarily covered by such letters, and in a form that
shall be reasonably satisfactory to Majority Selling Holders. The Company shall
furnish to each Selling Holder a signed counterpart of any such comfort letter
or legal opinion. Delivery of any such opinion or comfort letter shall be
subject to the recipient furnishing such written representations or
acknowledgements as are customarily provided by selling shareholders who receive
such comfort letters or opinions.
(x) Provide and cause to be maintained a transfer agent and registrar for
all Registrable Securities covered by such registration statement from and after
a date not later than the effective date of such registration statement.
(xi) Use all reasonable efforts to cause the Registrable Securities covered
by such registration statement (i) if the Common Stock is then listed on a
securities exchange or included for quotation in a recognized trading market, to
continue to be so listed or included for a reasonable period of time after the
offering, and (ii) to be registered with or approved by such other United States
or state governmental agencies or authorities as may be necessary by virtue of
the business and operations of the Company to enable the Selling Holders of
Registrable Securities to consummate the disposition of such Registrable
Securities.
(xii) Use the Company's reasonable efforts to provide a CUSIP number for the
Registrable Securities prior to the effective date of the first registration
statement including Registrable Securities.
(xiii) Take such other actions as are reasonably required in order to
expedite or facilitate the disposition of Registrable Securities included in
each such registration.
Section 7. Holders' Obligations. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Registrable Securities of any Selling Holder of Registrable
Securities that such Selling Holder shall:
(i) Furnish to the Company such information regarding such Selling Holder,
the number of the Registrable Securities owned by it, and the intended method of
disposition of such securities as shall be required to effect the
registration of such Selling Holder's Registrable Securities, and to cooperate
with the Company in preparing such registration;
(ii) Agree to sell their Registrable Securities to the underwriters at the
same price and on substantially the same terms and conditions as the Company or
the other Persons on whose behalf the registration statement was being filed
have agreed to sell their securities, and to execute the underwriting agreement
agreed to by the Majority Selling Holders, as the case may be pursuant to this
Agreement or the Company and the Majority Selling Holders.
Section 8. Expenses of Registration. Expenses in connection with
registrations pursuant to this Agreement shall be allocated and paid as follows:
8.1. With respect to each Shelf Registration, the Company shall bear and pay
all expenses incurred in connection with any registration, filing, or
qualification of Registrable Securities with respect to such Registrations for
each Selling Holder (which right may be assigned to any Person to whom
Registrable Securities are Transferred as permitted by Section 10), including
all registration, filing and National Association of Securities Dealers, Inc.
fees, all fees and expenses of complying with securities or blue sky laws, all
word processing, duplicating and printing expenses, messenger and delivery
expenses, the reasonable fees and disbursements of counsel for the Company, and
of the Company's independent public accountants, including the expenses of "cold
comfort" letters required by or incident to such performance and compliance, and
the reasonable fees and disbursements of one firm of counsel for the Selling
Holders of Registrable Securities (selected by Holders of a majority of the
Registrable Securities covered by such Shelf Registration) (the "Registration
Expenses"), but excluding underwriting discounts and commissions relating to
Registrable Securities (which shall be paid on a pro rata basis by the Selling
Holders).
8.2. The Company shall bear and pay all Registration Expenses incurred in
connection with any Piggyback Registrations pursuant to Section 4 for each
Selling Holder (which right may be Transferred to any Person to whom Registrable
Securities are Transferred as permitted by Section 10), but excluding
underwriting discounts and commissions relating to Registrable Securities (which
shall be paid on a pro rata basis by the Selling Holders of Registrable
Securities).
8.3. Any failure of the Company to pay any Registration Expenses as required
by this Section 8 shall not relieve the Company of its obligations under this
Agreement.
Section 9. Indemnification; Contribution. If any Registrable Securities are
included in a registration statement under this Agreement:
9.1. To the extent permitted by applicable law, the Company shall indemnify
and hold harmless each Selling Holder, each Person, if any, who controls such
Selling Holder within the meaning of the Securities Act, and each officer,
director, partner, and employee of such Selling Holder and such controlling
Person, against any and all losses, claims, damages, liabilities and expenses
(joint or several), including attorneys' fees and disbursements and expenses of
investigation, incurred by such party pursuant to any actual or threatened
action, suit, proceeding or investigation, or to which any of the foregoing
Persons may become subject under the Securities Act, the Exchange Act or other
federal or state laws, insofar as such losses, claims, damages, liabilities and
expenses arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein, or any amendments or supplements thereto;
(ii) The omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein not
misleading; or
(iii) Any violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any applicable state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any
applicable state securities law;
provided, however, that the indemnification required by this Section 9.1 shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or expense to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information
furnished to the Company by the indemnified party expressly for use in
connection with such registration; provided, further, that the indemnity
agreement contained in this Section 9 shall not apply to any underwriter to the
extent that any such loss is based on or arises out of an untrue statement or
alleged untrue statement of a material fact, or an omission or alleged omission
to state a material fact, contained in or omitted from any preliminary
prospectus if the final prospectus shall correct such untrue statement or
alleged untrue statement, or such omission or alleged omission, and a copy of
the final prospectus has not been sent or given to such person at or prior to
the confirmation of sale to such person if such underwriter was under an
obligation to deliver such final prospectus and failed to do so. The Company
shall also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers, directors, agents and employees and each person who controls such
persons (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 Selling Holders.
9.2. To the extent permitted by applicable law, each Selling Holder shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who shall have signed the registration statement, each Person, if any,
who controls the Company within the meaning of the Securities Act, any other
Selling Holder, any controlling Person of any such other Selling Holder and each
officer, director, partner, and employee of such other Selling Holder and
such controlling Person, against any and all losses, claims, damages,
liabilities and expenses (joint and several), including attorneys' fees and
disbursements and expenses of investigation, incurred by such party pursuant to
any actual or threatened action, suit, proceeding or investigation, or to which
any of the foregoing Persons may otherwise become subject under the Securities
Act, the Exchange Act or other federal or state laws, insofar as such losses,
claims, damages, liabilities and expenses arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Selling Holder expressly for use in connection with such
registration; provided, however, that (x) the indemnification required by this
Section 9.2 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or expense if settlement is effected without the
consent of the relevant Selling Holder of Registrable Securities, which consent
shall not be unreasonably withheld, and (y) in no event shall the amount of any
indemnity under this Section 9.2 exceed the gross proceeds from the applicable
offering received by such Selling Holder.
9.3. Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, suit, proceeding, investigation or
threat thereof made in writing for which such indemnified party may make a claim
under this Section 9, such indemnified party shall deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party shall have the right to retain its
own counsel, with the fees and disbursements and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time following the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 9 but shall not relieve the indemnifying
party of any liability that it may have to any indemnified party otherwise than
pursuant to this Section 9. Any fees and expenses incurred by the indemnified
party (including any fees and expenses incurred in connection with investigating
or preparing to defend such action or proceeding) shall be paid to the
indemnified party, as incurred, within thirty (30) days of written notice
thereof to the indemnifying party (regardless of whether it is ultimately
determined that an indemnified party is not entitled to indemnification
hereunder). Any such indemnified party shall have the right to employ separate
counsel in any such action, claim or proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be the expenses
of such indemnified party unless (i) the indemnifying party has agreed to pay
such fees and expenses or (ii) the indemnifying party shall have failed to
promptly assume the defense of such action, claim or proceeding or (iii) the
named parties to any such action, claim or proceeding (including any impleaded
parties) include both such indemnified party and the indemnifying party, and
such indemnified party shall have been advised by counsel that there may be one
or more legal defenses available to it which are different from or in addition
to those available to the indemnifying party and that the assertion of such
defenses would create a conflict of interest such that counsel employed by the
indemnifying party could not faithfully represent the indemnified party (in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified parties, unless
in the reasonable judgment of such indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such action, claim or proceeding, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels). No indemnifying party shall be liable to an
indemnified party for any settlement of any action, proceeding or claim without
the written consent of the indemnifying party, which consent shall not be
unreasonably withheld.
9.4. If the indemnification required by this Section 9 from the indemnifying
party is unavailable to an indemnified party hereunder in respect of any losses,
claims, damages, liabilities or expenses referred to in this Section 9:
(i) 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 Violation has been committed 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 Violation. 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 9.1 and
Section 9.2, any legal or other fees or expenses reasonably incurred by such
party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9.4 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in Section 9.4(i). 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.
9.5. If indemnification is available under this Section 9, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
this Section 9 without regard to the relative fault of such indemnifying party
or indemnified party or any other equitable consideration referred to in Section
9.4.
9.6. The obligations of the Company and the Selling Holders of Registrable
Securities under this Section 9 shall survive the completion of any offering of
Registrable Securities pursuant to a registration statement under this
Agreement, and otherwise.
Section 10. Transfer of Registration Rights. Rights with respect to
Registrable Securities may be Transferred as follows: all rights of a Holder
with respect to Registrable Securities pursuant to this Agreement may be
Transferred by such Holder to any of its Person in connection with the Transfer
of Registrable Securities to such Person, in all cases, if (x) any such
Transferee that is not a party to this Agreement shall have executed and
delivered to the Secretary of the Company a properly completed agreement
substantially in the form of Exhibit A, and (y) the Transferor shall have
delivered to the Secretary of the Company, no later than 15 days following the
date of the Transfer, written notification of such Transfer setting forth the
name of the Transferor, name and address of the Transferee, and the number of
Registrable Securities which shall have been so Transferred.
Section 11. Holdback. Each Holder entitled pursuant to this Agreement to
have Registrable Securities included in a registration statement prepared
pursuant to this Agreement, if so requested by the Underwriters' Representative
or Agent in connection with an offering of any Registrable Securities, shall not
effect any public sale or distribution of shares of Common Stock or any
securities convertible into or exchangeable or exercisable for shares of Common
Stock, including a sale pursuant to Rule 144 under the Securities Act (except as
part of such underwritten or agented registration), during the 15-day period
prior to, and during the 180-day period beginning on, the date such registration
statement is declared effective under the Securities Act by the Commission,
provided that such Holder is timely notified of such effective date in writing
by the Company or such Underwriters' Representative or Agent. In order to
enforce the foregoing covenant, the Company shall be entitled to impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder until the end of such period.
Section 12. Covenants of the Company. The Company hereby agrees and
covenants as follows:
12.1.
(i) The Company shall file as and when applicable, on a timely basis, all
reports required to be filed by it under the Exchange Act. If the Company is
not required to file reports pursuant to the Exchange Act, upon the request of
any Holder of Registrable Securities, the Company shall make publicly available
the information specified in subparagraph (c)(2) of Rule 144 of the Securities
Act, and take such further action as may be reasonably required from time to
time and as may be within the reasonable control of the Company, to enable the
Holders to Transfer Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
under the Securities Act or any similar rule or regulation hereafter adopted by
the Commission.
(ii) The Company shall not, and shall not permit its majority owned
subsidiaries to, effect any public sale or distribution of any shares of Common
Stock or any securities convertible into or exchangeable or exercisable for
shares of Common Stock, during the five business days prior to, and during the
90-day period beginning on, the commencement of a public distribution of the
Registrable Securities pursuant to any registration statement prepared pursuant
to this Agreement (other than by the Company pursuant to such registration if
the registration is pursuant to Section 4).
(iii) Any agreement entered into after the date of this Agreement pursuant
to which the Company or any of its majority owned subsidiaries issues or agrees
to issue any privately placed securities similar to any issue of the Registrable
Securities (other than (x) shares of Common Stock pursuant to a stock incentive,
stock option, stock bonus, stock purchase or other employee benefit plan of the
Company approved by its Board of Directors, and (y) securities issued to Persons
in exchange for ownership interests in any Person in connection with a business
combination in which the Company or any of its majority owned subsidiaries is a
party) shall contain a provision whereby holders of such securities agree not to
effect any public sale or distribution of any such securities during the periods
described in the first sentence of Section 12.1(ii), in each case including a
sale pursuant to Rule 144 under the Securities Act (unless such Person is
prevented by applicable statute or regulation from entering into such an
agreement).
12.2. The Company shall not, directly or indirectly, (x) enter into any
merger, consolidation or reorganization in which the Company shall not be the
surviving corporation or (y) Transfer or agree to Transfer all or substantially
all the Company's assets, unless prior to such merger, consolidation,
reorganization or asset Transfer, the surviving corporation or the Transferee,
respectively, shall have agreed in writing to assume the obligations of the
Company under this Agreement, and for that purpose references hereunder to
"Registrable Securities" shall be deemed to include the securities which the
Holders of Registrable Securities would be entitled to receive in exchange for
Registrable Securities pursuant to any such merger, consolidation or
reorganization.
12.3. Except as disclosed in Schedule 12.3, the Company shall not grant to
any Person (other than a Holder of Registrable Securities) any registration
rights with respect to securities of the Company, or enter into any agreement,
that would entitle the holder thereof to have securities owned by it included in
a Shelf Registration.
Section 13. "Market Stand-Off' Agreement. Each Holder hereby agrees that it
shall not, to the extent requested by the Company and an underwriter of
Common Stock of the Company, sell or otherwise transfer or dispose of any
Registrable Securities (other than Registrable Securities being registered in
such offering) for up to that period of time following the effective date of a
registration statement of the Company filed under the Securities Act as is
requested by the managing underwriter(s) of such offering, not to exceed one
hundred twenty (120) calendar days; provided, however, that:
(i) such agreement shall be applicable only to the first such registration
statement of the Company which covers securities to be sold on its behalf to the
public in an underwritten offering but not to Registrable Securities sold
pursuant to such registration statement; and
(ii) all officers, directors and ten percent (10%) or greater stockholders
of the Company, provided such stockholders have acquired such securities
directly from the Company, then holding Common Stock of the Company, shall enter
into similar agreements.
In order to enforce the foregoing covenant, the Company may impose stop
transfer instructions with respect to the then-remaining Registrable Securities
of each Holder (and the shares or securities of every other person subject to
the foregoing restriction) until the end of such period.
Section 14. Amendment, Modification and Waivers; Further Assurances.
(i) This Agreement may be amended with the consent of the Company and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent of Holders owning Registrable Securities possessing a majority
in number of the Registrable Securities then outstanding to such amendment,
action or omission to act.
(ii) No waiver of any terms or conditions of this Agreement shall operate as
a waiver of any other breach of such terms and conditions or any other term or
condition, nor shall any failure to enforce any provision hereof operate as a
waiver of such provision or of any other provision hereof. No written waiver
hereunder, unless it by its own terms explicitly provides to the contrary, shall
be construed to effect a continuing waiver of the provisions being waived and no
such waiver in any instance shall constitute a waiver in any other instance or
for any other purpose or impair the right of the party against whom such waiver
is claimed in all other instances or for all other purposes to require full
compliance with such provision.
(iii) Each of the parties hereto shall execute all such further instruments
and documents and take all such further action as any other party hereto may
reasonably require in order to effectuate the terms and purposes of this
Agreement.
Section 15. Assignment; Benefit. This Agreement and all of the provisions
hereof shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, assigns, executors, administrators or
successors; provided, however, that except as specifically provided herein with
respect to certain matters, neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned or delegated by the Company
without the prior written consent of Holders owning Registrable Securities
possessing a majority in number of the Registrable Securities outstanding on the
date as of which such delegation or assignment is to become effective. A Holder
may Transfer its rights hereunder to a successor in interest to the Registrable
Securities owned by such assignor only as permitted by Section 10.
Section 16. Miscellaneous.
16.1. Governing Law and Jurisdiction.
(i) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING REGARD TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
(ii) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE PARTIES TO THIS AGREEMENT CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. EACH OF THE PARTIES TO THIS AGREEMENT WAIVE PERSONAL SERVICE OF
ANY SUMMONS, COMPALINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY ILLINOIS LAW.
16.2. Notices. All notices and requests given pursuant to this Agreement
shall be in writing and shall be made by hand-delivery, first-class mail
(registered or certified, return receipt requested), confirmed facsimile or
overnight air courier guaranteeing next business day delivery to (i) in case of
any of the Holders, the relevant address specified on Schedule 1 to this
Agreement or in the relevant agreement in the form of Exhibit A whereby such
party became bound by the provisions of this Agreement, and (ii) in case of the
Company, to ABC-NACO Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President and Treasurer, Tel:
▇▇▇-▇▇▇-▇▇▇▇, Fax: ▇▇▇-▇▇▇-▇▇▇▇, with copies to (X) ABC-NACO Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief
Executive Officer, Tel: ▇▇▇-▇▇▇-▇▇▇▇, Fax: ▇▇▇-▇▇▇-▇▇▇▇, and (Y) ▇'▇▇▇▇▇▇ &
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Tel: (▇▇▇) ▇▇▇-▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇. Except as otherwise provided in this
Agreement, the date of each such notice and request shall be deemed to be, and
the date on which each such notice and request shall be deemed given shall be:
at the time delivered, if personally delivered or mailed; when receipt is
acknowledged, if sent by facsimile; and the next business day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next
business day delivery.
16.3. Entire Agreement; Integration. This Agreement supersedes all prior
agreements between or among any of the parties hereto with respect to the
subject matter contained herein and therein, and such agreements embody the
entire understanding among the parties relating to such subject matter.
16.4. Injunctive Relief. Each of the parties hereto acknowledges that in
the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each
of the parties therefore agrees that in the event of such a breach hereof the
aggrieved party may elect to institute and prosecute proceedings in any court of
competent jurisdiction to enforce specific performance or to enjoin the
continuing breach hereof. By seeking or obtaining any such relief, the
aggrieved party shall not be precluded from seeking or obtaining any other
relief to which it may be entitled.
16.5. Section Headings. Section headings are for convenience of reference
only and shall not affect the meaning of any provision of this Agreement.
16.6. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be on
the same counterpart.
16.7. Severability. If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity
and enforceability of the remaining provisions of this Agreement, unless the
result thereof would be unreasonable, in which case the parties hereto shall
negotiate in good faith as to appropriate amendments hereto.
16.8. Filing. A copy of this Agreement and of all amendments thereto shall
be filed at the principal executive office of the Company with the corporate
recorder of the Company.
16.9. Termination. This Agreement may be terminated at any time by a
written instrument signed by the parties hereto. Unless sooner terminated in
accordance with the preceding sentence, this Agreement (other than Section 9
hereof) shall terminate in its entirety on such date as there shall be no
Registrable Securities outstanding, provided that any shares of Common Stock
previously subject to this Agreement shall not be Registrable Securities
following the sale of any such shares in an offering registered pursuant to this
Agreement.
16.10. Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the successful party shall be entitled to recover reasonable
attorneys' fees (including any fees incurred in any appeal) in addition to its
costs and expenses and any other available remedy.
16.11. No Third Party Beneficiaries. Nothing herein expressed or implied is
intended to confer upon any person, other than the parties hereto or their
respective permitted assigns, successors, heirs and legal representatives, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first written above.
2
NY1 2068814v8
NY1 2068814v8
ABC-NACO INC.
By: ___________________________
Name:
Title:
BANK OF AMERICA, N.A. FLEET NATIONAL BANK
By: By:
Name: Name:
Title Title
BANK OF AMERICA CANADA BANK ONE, NA (Main Chicago Office)
By: By:
Name: Name:
Title Title
ABN AMRO BANK N.V. FIRSTAR BANK, N.A.
By: By:
Name: Name:
Title Title
PNC BANK NATIONAL ASSOCIATION ▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: By:
Name: Name:
Title Title
THE NORTHERN TRUST COMPANY LASALLE BANK NATIONAL ASSOCIATION
By: By:
Name: Name:
Title Title
US BANK NATIONAL ASSOCIATION
By:
Name:
Title
A-3
NY1 2068814v8
SCHEDULE 1
To Registration
Rights Agreement
LIST OF HOLDERS
BANK OF AMERICA, N.A.,
PNC BANK NATIONAL ASSOCIATION
Attn:
Tel: Attn:
Fax: Tel:
Fax:
FLEET NATIONAL BANK
BANK OF AMERICA, N.A., BANK ONE, NA (MAIN CHICAGO OFFICE)
Attn: Attn:
Tel: Tel:
Fax: Fax:
BANK OF AMERICA, N.A. FIRSTAR BANK, N.A.
Attn: Attn:
Tel: Tel:
Fax: Fax:
BANK OF AMERICA CANADA ▇▇▇▇▇▇ TRUST AND SAVINGS BANK
Attn: Attn:
Tel: Tel:
Fax: Fax:
ABN AMRO BANK N.V. LASALLE BANK NATIONAL ASSOCIATION
Attn: Attn:
Tel: Tel:
Fax: Fax:
THE NORTHERN TRUST COMPANY US BANK NATIONAL ASSOCIATION
Attn: Attn:
Tel: Tel:
Fax: Fax:
EXHIBIT A
to Registration
Rights Agreement
AGREEMENT TO BE BOUND
BY THE REGISTRATION RIGHTS AGREEMENT
The undersigned, being the transferee of ______ shares of the common stock,
$.01 par value per share [or describe other capital stock received in exchange
for such common stock] (the "Registrable Securities"), of
________________________, a Delaware corporation (the "Company"), as a condition
to the receipt of such Registrable Securities, acknowledges that matters
pertaining to the registration of such Registrable Securities is governed by the
Registration Rights Agreement dated as of May 2, 2001 initially among the
Company and the Holders referred to therein (the "Agreement"), and the
undersigned hereby (1) acknowledges receipt of a copy of the Agreement, and (2)
agrees to be bound as a Holder by the terms of the Agreement, as the same has
been or may be amended from time to time.
Agreed to this __ day of ______________, ____________.
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*Include address for notices.