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EXHIBIT 4.7
3,000,000 TIDES(SM)*
COLTEC CAPITAL TRUST
5.25% CONVERTIBLE PREFERRED SECURITIES
GUARANTEED BY COLTEC INDUSTRIES INC
REGISTRATION RIGHTS AGREEMENT
April 14, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
CIBC OPPENHEIMER CORP.
XXXXXX BROTHERS INC.
C/O CREDIT SUISSE FIRST BOSTON CORPORATION,
ELEVEN MADISON AVENUE
NEW YORK, N.Y. 10010-3629
Ladies and Gentlemen:
Coltec Capital Trust (the "Trust"), a statutory business trust created
under the laws of the State of Delaware by Coltec Industries Inc (the
"Company"), as sponsor, proposes to issue and sell to Credit Suisse First Boston
Corporation, CIBC Xxxxxxxxxxx Corp. and Xxxxxx Brothers Inc. (the "Initial
Purchasers"), upon the terms set forth in a purchase agreement dated April 8,
1998 (the "Purchase Agreement"), among the Initial Purchasers, the Company and
the Trust, 5.25% Convertible Preferred Securities, Term Income Deferrable Equity
Securities (TIDES), Liquidation Amount $50 per Convertible Preferred Security,
(the "Preferred Securities") (the "Initial Placement"). As an inducement to the
Initial Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Initial Purchasers thereunder, the Trust and
the Company agree with you, (i) for the benefit of the Initial Purchasers and
(ii) for the benefit of the holders from time to time of the Preferred
Securities, the 5.25% Convertible Subordinated Deferrable Interest Debentures
Due 2028 (the "Debentures"), the shares of Common Stock issuable upon conversion
thereof (the "Common Stock") and the Guarantee of the Company of the Preferred
Securities (the "Guarantee" and together with the Common Stock, the Debentures
and the Preferred Securities, the "Securities"), including the Initial
Purchasers (each of the foregoing, a "Holder" and, together, the "Holders"), as
follows:
1. Definitions.
Capitalized terms used herein without definition shall have their
respective meanings set forth in or pursuant to the Purchase Agreement or the
Offering Circular dated April 8, 1998, in respect of the Preferred Securities,
as applicable.
2. Shelf Registration.
(a) The Company and the Trust shall, at their cost, as promptly as
practicable (but in no event more than 90 days following the date of original
issuance (the "Issue Date") of the Preferred Securities) file with the
Commission and thereafter shall use its reasonable best efforts to cause to be
declared effective within 150 days following the Issue Date a registration
statement (the "Shelf Registration Statement") on an appropriate form under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the offer
and sale of the 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 (other than an Initial
Purchaser) shall be entitled to have the Securities held by
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* The terms Term Income Deferrable Equity Security (TIDES)(SM) and TIDES(SM)
are registered servicemarks of Credit Suisse First Boston Corporation.
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it 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.
(b) The Company shall use its reasonable 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 the relevant
Securities, for a period of two years (or for such longer period if extended
pursuant to this paragraph (b) or to Section 3(h) below) from the date of its
effectiveness or such shorter period that will terminate when (i) all the
Securities covered by the Shelf Registration Statement have been sold pursuant
thereto or (ii) in the written opinion of counsel to the Trust and the Company,
all outstanding Securities held by persons that are not affiliates of the Trust
or the Company may be resold without registration under the Act pursuant to Rule
144(k) under the Act or any successor provision thereto or any other applicable
law, rule or regulation, whether now in effect or hereinafter promulgated,
adopted or issued (the "Shelf Registration Period"); provided, however, the
Company shall not be obligated to keep the Shelf Registration Statement
continuously effective to the extent set forth above if (i) the Company
determines, in its reasonable judgment, upon advice of counsel, as authorized by
a resolution of its Board of Directors, that the continued effectiveness and
usability of the Shelf Registration Statement would (x) require the disclosure
of material information, which the Company has a bona fide business reason for
preserving as confidential, or (y) interfere with any financing, acquisition,
corporate reorganization or other material transaction or development involving
the Company or any of its subsidiaries or its parent or the contemplated timing
thereof, provided that the failure to keep the Shelf Registration Statement
effective and usable for offers and sales of Securities for such reason shall
last no longer than 45 days in any three-month period or three periods not to
exceed an aggregate of 90 days in any 12-month period (whereafter Additional
Interest (as defined in Section 6(a)) shall accrue and be payable), and (ii) the
Company and the Trust promptly thereafter complies with the requirements of
Section 3(h) hereof, if applicable; provided further that the number of days of
any actual Suspension Period shall be added on to the end of the two-year period
specified above. Any such period during which the Company is excused from
keeping the Shelf Registration Statement effective and usable for offers and
sales of Securities is referred to herein as a "Suspension Period." A Suspension
Period shall commence on and include the date that the Company gives notice that
the Shelf Registration Statement is no longer effective or the prospectus
included therein is no longer usable for offers and sales of Securities and
shall end on the earlier to occur of (1) the date on which each seller of
Securities covered by the Shelf Registration Statement either receives the
copies of the supplemented or amended prospectus contemplated by Section 3(h)
hereof or is advised in writing by the Company that the use of the prospectus
may be resumed and (2) the expiration of 45 days in any three-month period or
three periods not to exceed an aggregate of 90 days in any 12-month period
during which one or more Suspension Periods has been in effect. Except as
provided above, the Company shall be deemed not to have used its reasonable best
efforts to keep the Shelf Registration Statement effective during the requisite
period if it voluntarily takes any action that would result in Holders of
Securities covered thereby not being able to offer and sell such Securities
during that period, unless such action is required by applicable law.
(c) 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, (i) to comply in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission (the
"Commission") and (ii) 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.
3. Registration Procedures. In connection with any Shelf Registration, the
following provisions shall apply:
(a) The Company and the Trust shall (i) furnish to each Initial Purchaser,
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 an Initial Purchaser
(with respect to any portion of an unsold allotment from the Initial Placement)
is participating in the Shelf Registration, the Company shall use its reasonable
best efforts to reflect in each such document, when so filed with the
Commission, such comments as such Initial Purchaser reasonably may propose and
(ii) include the names of the Holders, who propose to sell Securities pursuant
to the Shelf Registration Statement, as selling securityholders.
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(b) The Company and the Trust shall give written notice to the Initial
Purchasers 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. After the effectiveness
of the Shelf Registration Statement, the Company and the Trust shall give
written notice to the Initial Purchasers and the Holders of the Securities:
(i) of any request by the Commission for amendments or supplements to
the Shelf Registration Statement or the prospectus included therein or for
additional information;
(ii) 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;
(iii) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(iv) of the happening of any event (including, without limitation, of
any event resulting in a Suspension Period) 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 do 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
(in the case of the prospectus, in light of the circumstances under which
they were made) not misleading.
(c) The Company and the Trust shall make every reasonable effort to obtain
the withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company and the Trust shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without charge, at least
one copy of the Shelf Registration Statement and any posteffective amendment
thereto, including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(e) The Company and the Trust shall, during the Shelf Registration Period,
deliver to each Holder of 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 by each of the selling Holders
of the Securities in connection with the offering and sale of the Securities
covered by the prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
(f) Prior to any public offering of the Securities, pursuant to any Shelf
Registration Statement, the Company and the Trust shall register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification of the
Securities for offer and sale under the securities or "blue sky" laws of such
states of the United States as any Holder of the Securities reasonably requests
in writing and do any and all other acts or things reasonably necessary or
advisable to enable the offer and sale in such jurisdictions of the Securities
covered by such Shelf Registration Statement; provided, however, that the
Company shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) 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.
(g) The Company and the Trust shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of certificates
representing the Securities to be sold pursuant to any Shelf Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as the Holders may request a reasonable period of time
prior to sales of the Securities pursuant to such Shelf Registration Statement.
(h) Upon the occurrence of any event (other than an event resulting in a
Suspension Period) contemplated by paragraphs (i) through (iv) of Section 3(b)
above during the period for which the Company is required to maintain an
effective Shelf Registration Statement, the Company and the Trust shall promptly
prepare and file a post-effective amendment to the Shelf Registration Statement
or a supplement to the related prospectus and any
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other required document so that, as thereafter delivered to Holders of the
Securities or purchasers of 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 Initial Purchasers and the Holders of the Securities in accordance
with paragraphs (i) through (iv) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made, then
the Initial Purchasers and the Holders of the Securities shall suspend use of
such prospectus, and the period of effectiveness of the Shelf Registration
Statement provided for in Section 3(b) above shall each 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 Initial Purchasers and the Holders of the Securities
shall have received such amended or supplemented prospectus pursuant to this
Section 3(h).
(i) Not later than the effective date of the Shelf Registration Statement,
the Company will provide a CUSIP number for the Securities and provide the
Property Trustee with printed certificates for the Securities in a form eligible
for deposit with The Depository Trust Company.
(j) The Company and the Trust 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 the Company will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of the Securities
Act) an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days after the end of four quarterly periods
(or 90 days, if such period is a fiscal year) beginning with the Company's first
fiscal quarter commencing after the effective date of the Shelf Registration
Statement, which statement shall cover such four quarterly periods.
(k) The Company and the Trust shall cause the Indenture, the Declaration
and the Guarantee Agreement to be qualified under the Trust Indenture Act of
1939, as amended, in a timely manner and containing such changes, if any, as
shall be necessary for such qualification. In the event that such qualification
would require the appointment of a new trustee under the Indenture, the
Declaration or the Guarantee Agreement, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture, the
Declaration or the Guarantee Agreement, as the case may be.
(l) The Company may require each Holder of Securities to be sold pursuant
to the Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of the Securities as the Company may
from time to time reasonably require for inclusion in the Shelf Registration
Statement, and the Company may exclude from such registration the Securities of
any Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
(m) The Company and the Trust 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 the Securities shall reasonably
request in order to facilitate the disposition of the Securities pursuant to any
Shelf Registration.
(n) The Company shall (i) make reasonably available for inspection by the
Holders of the Securities, any underwriter participating in any disposition
pursuant to the Shelf Registration Statement and any attorney, accountant or
other agent retained by the Holders of the Securities or any such underwriter
all relevant financial and other records, pertinent documents and properties of
the Company and (ii) cause the Company's officers, directors, employees,
accountants and auditors and the Trust's trustees to supply all relevant
information reasonably requested by the Holders of the Securities or any such
underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably necessary to enable
such persons, 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 the
Initial Purchasers by you and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in Section 4
hereof. Each Holder of Securities or any underwriter, attorney, accountant or
agent conducting an inspection under this Section 3(n) will be required, as a
condition to conducting such investigation, to agree that information obtained
by it as a result of such inspections shall be deemed confidential and shall not
be used by it as the basis for any market transactions in the securities of the
Company unless and until such information is generally available to the public.
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(o) The Company and the Trust, if requested by any Holder of Securities
covered thereby, shall cause (i) its counsel (which may include internal
counsel) to deliver an opinion and updates thereof relating to the Securities in
customary form and substance addressed to such Holders and the managing
underwriters, if any, thereof and dated, in the case of the initial opinion, the
effective date of such Shelf Registration Statement covering the matters
customarily covered in opinions requested in underwritten offerings; (ii) the
Company's officers and the Trust's trustees to execute and deliver all customary
documents and certificates and updates thereof requested by any underwriters of
the applicable Securities and (iii) its independent public accountants and the
independent public accountants with respect to any other entity for which
financial information is provided in the Shelf Registration Statement to provide
to the selling Holders of the applicable Securities and any underwriter therefor
a comfort letter in customary form and covering matters of the type customarily
covered in comfort letters in connection with public underwritten offerings,
subject to receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
(p) The Company and the Trust will use its reasonable best efforts to (a)
if the Securities have been rated prior to the initial sale of such Securities,
confirm such ratings will apply to the Securities covered by a Shelf
Registration Statement, or (b) if the Securities were not previously rated,
cause the Securities covered by a Shelf Registration Statement to be rated with
the appropriate rating agencies, in each case, if so requested prior to the
effectiveness of the Shelf Registration Statement, by Holders of a majority in
aggregate liquidation amount of Preferred Securities covered by such Shelf
Registration Statement, or by the managing underwriters, if any.
(q) In the event that any broker-dealer registered under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), shall underwrite any
Securities or participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the Conduct Rules
(the "Rules") of the National Association of Securities Dealers, Inc. ("NASD"))
thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
the Company and the Trust will reasonably assist such broker-dealer in complying
with the requirements of such Rules, including, without limitation, by (i) if
such Rules, including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in the
preparation of the Shelf Registration Statement relating to such 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, (ii) indemnifying any such qualified
independent underwriter to the extent of the indemnification of underwriters
provided in Section 6 hereof and (iii) 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.
(r) The Company and the Trust shall use its reasonable best efforts to take
all other steps necessary to effect the registration of the Securities covered
by a Shelf Registration Statement contemplated hereby. The Initial Purchasers
agree to provide any reasonable assistance requested by the Company in complying
with its obligations pursuant to this Section 3.
4. Registration Expenses. The Company and the Trust shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections 3 and 4 hereof, whether or not the Shelf Registration is filed or
becomes effective, and shall bear or reimburse the Holders of the Securities
covered thereby for the reasonable fees and disbursements of one firm of counsel
designated by the Holders of a majority in liquidation amount of the Preferred
Securities covered thereby to act as counsel for the Holders of the Securities
in connection therewith; provided that such Holders shall be responsible for any
and all underwriting discounts and commissions and all other costs and expenses
customarily borne by securityholders in similar circumstances.
5. Indemnification. (a) The Company and the Trust agree to indemnify and hold
harmless each Holder of the Securities and each person, if any, who controls
such Holder within the meaning of the Securities Act or the Exchange Act (each
Holder, such controlling persons and their respective affiliates, directors,
officers, employees, representatives and agents are referred to collectively as
the "Indemnified Parties") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including, but
not limited to, any losses, claims, damages, liabilities or actions relating to
purchases and sales of the Securities) to which each Indemnified Party may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such
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losses, claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
a Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf Registration, or
arise out of, or are based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and, subject to the limitation set forth in
the immediately preceding clause, shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) neither the
Company nor the Trust shall be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf Registration in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein and (ii) with respect to any untrue statement or omission
or alleged untrue statement or omission made in any preliminary prospectus
relating to a Shelf Registration Statement, the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any Holder to the extent
that a prospectus relating to such Securities was required to be delivered by
such Holder under the Securities Act in connection with such purchase and any
such loss, claim, damage or liability of such Holder results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the final
prospectus if the Company had previously furnished copies thereof to such
Holder; provided further, however, that this indemnity agreement will be in
addition to any liability which the Company or the Trust may otherwise have to
such Indemnified Party. The Company and the Trust shall also indemnify
underwriters, their officers and directors and each person who controls such
underwriters within the meaning of the Securities Act or the Exchange Act to the
same extent as provided above with respect to the indemnification of the Holders
of the Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company, the Trust, their respective
subsidiaries, affiliates, directors, trustees, officers, employees,
representatives and agents and any such controlling person and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or any
actions in respect thereof, to which the Company, the Trust, their respective
subsidiaries, affiliates, directors, trustees, officers, employees,
representatives and agents and any such controlling person or any such
controlling person may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Shelf Registration Statement or prospectus or
in any amendment or supplement thereto or in any preliminary prospectus relating
to a Shelf Registration, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to make the
statements therein not misleading, but in each case only to the extent that the
untrue statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any loss, claim, damage, liability or action in respect thereof.
This indemnity agreement will be in addition to any liability which such Holder
may otherwise have to the Company, the Trust or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 5, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the
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indemnifying party to such indemnified party of its election so to assume the
defense thereof the indemnifying party will not be liable to such indemnified
party under this Section 5 for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section 5 is unavailable or
insufficient to hold harmless an indemnified party under subsections (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the sale of the Securities, pursuant to the
Shelf Registration, or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Trust on the one hand or such Holder or such
other indemnified party, as the case may be, on the other, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding any other provision of this Section 5(d), the
Holders of the Securities shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders from the
sale of the Securities pursuant to a Shelf Registration Statement exceeds the
amount of damages which such Holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company or the Trust within the meaning of the Securities Act or
the Exchange Act shall have the same rights to contribution as the Company or
the Trust.
(e) The agreements contained in this Section 5 shall survive the sale of
the Securities pursuant to a Shelf Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional interest
(the "Additional Interest") with respect to the Securities shall be assessed as
follows if any of the following events occur (each such event in clauses (i)
through (iii) below a "Registration Default":
(i) If within 90 days of April 14, 1998, the Shelf Registration
Statement has not been filed with the Commission;
(ii) If within 150 days of April 14, 1998, the Shelf Registration
Statement is not declared effective by the Commission; or
(iii) If after the Shelf Registration Statement is declared effective
(A) the Shelf Registration Statement thereafter ceases to be effective; or
(B) except as permitted in paragraph (b) below, the Shelf Registration
Statement or the related prospectus ceases to be usable in connection with
resales of Transfer Restricted Securities during the periods specified
herein because either (1) any event occurs as a result of which the
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related prospectus forming part of such Shelf Registration Statement would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or (2) it shall be
necessary to amend such Shelf Registration Statement or supplement the
related prospectus, to comply with the Securities Act or the Exchange Act
or the respective rules thereunder.
Subject to paragraph (b) below, Additional Interest shall accrue on the
Debentures over and above the interest set forth in the title of the Debentures
from and including the date on which any such Registration Default shall occur
to but excluding the earlier of (x) the date on which all such Registration
Defaults have been cured and (y) the date on which the Company is no longer
required to keep the Shelf Registration Statement effective in accordance with
Section 2 hereof, at a rate of 0.50% per annum, calculated on the principal
amount of the Debentures as of the day on which such interest is payable.
(b) A Registration Default referred to in Section 6(a)(iii)(B) hereof shall
be deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus, (y) other material events, with respect
to the Company that would need to be described in such Shelf Registration
Statement or the related prospectus or (z) a Suspension Period not to exceed 45
days in any three-month period or three periods not to exceed an aggregate of 90
days in any 12-month period pursuant to Section 2(b) and (ii) in the case of
clause (y), the Company is proceeding promptly and in good faith to amend or
supplement such Shelf Registration Statement and related prospectus to describe
such events.
(c) Any amounts of Additional Interest due pursuant to clause (i), (ii) or
(iii) of Section 6(a) above will be payable in cash on the regular interest
payment dates with respect to the Debentures. The amount of Additional Interest
will be determined by multiplying the applicable Additional Interest rate by the
principal amount of the Debentures, multiplied by a fraction, the numerator of
which is the number of days such Additional Interest rate was applicable during
such period (determined on the basis of a 360-day year comprised of twelve
30-day months), and the denominator of which is 360.
(d) "Transfer Restricted Securities" means each Security until (i) the date
on which such Security has been effectively registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement or (ii) the
date on which such Security is distributed to the public pursuant to Rule 144
under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act.
7. Rules 144 and 144A. The Company shall use its reasonable best efforts to
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder of Securities,
make publicly available other information so long as necessary to permit sales
of their securities pursuant to Rules 144 and 144A. The Company covenants that
it will take such further reasonable action as any Holder of Securities may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Securities identified to the Company by
the Initial Purchasers upon request. Upon the request of any Holder of
Securities, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 7 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted Securities
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
administer the offering ("Managing Underwriters") will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities to be included in such offering.
No person may participate in any underwritten registration hereunder unless
such person (i) agrees to sell such person's Transfer Restricted Securities on
the basis reasonably provided in any underwriting arrangements
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approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous.
(a) Amendments and Waivers. 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, except by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address given
by such Holder to the Company.
(2) if to the Initial Purchasers:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxx, Xx., Esq.
(3) if to the Company, at its address as follows:
Coltec Industries Inc
3 Coliseum Center
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Corporate Secretary
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Xx., Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties and the
Holders, including, without the need for an express assignment or any consent by
the Trust or the Company thereto, subsequent Holders of Securities. The Trust
and
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the Company hereby agree to extend the benefits of this Agreement to any Holder
of Securities and any such Holder may specifically enforce the provisions of
this Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(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 LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
(h) Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval of
Holders of a specified percentage of liquidation amount of Preferred Securities
is required hereunder, Preferred Securities held by the Trust, the Company or
its affiliates (other than subsequent Holders of Preferred Securities if such
subsequent Holders are deemed to be affiliates solely by reason of their
holdings of such Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Issuer a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the several Initial Purchasers, the Issuer and the Trust in accordance with its
terms.
Very truly yours,
COLTEC INDUSTRIES, INC
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
General Counsel and Secretary
COLTEC CAPITAL TRUST
By: /s/ XXXXXX X. XXXXX, XX.
------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Administrative Trustee
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
CIBC XXXXXXXXXXX CORP.
XXXXXX BROTHERS INC.
ACTING ON BEHALF OF THEMSELVES
AND AS THE REPRESENTATIVES OF
THE SEVERAL PURCHASERS
BY CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ XXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate
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