SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 7)
SPS Technologies, Inc.
____________________________________________________________
(Name of Issuer)
Common Stock, Par Value $1.00 Per Share
____________________________________________________________
(Title of Class and Securities)
784626 10 3
___________________________________________________________
(CUSIP Number of Class of Securities)
John F. Keane
Tinicum Enterprises, Inc.
990 Stewart Avenue
Garden City, New York 11530
(516) 222-2874
_____________________________________________________________
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
Copy to:
Paul T. Schnell, Esq.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
(212) 735-3000
November 17, 1994
____________________________________________________________
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the
subject of this Statement because of Rule d-1(b)(3) or
(4), check the following box: ( )
Check the following box if a fee is being paid with this
Statement: ( )
This statement amends and supplements the
Statement on Schedule 13D (the "Schedule 13D") filed with
the Securities and Exchange Commission (the "Commission") by
Tinicum Enterprises, Inc., a Delaware corporation, Tinicum
Investors, a Delaware general partnership, RUTCO
Incorporated, a Delaware corporation, Tinicum Foreign
Investments Corporation, a Delaware corporation, Tinicum
Associates, G.P., a Delaware general partnership, RIT
Capital Partners plc, a United Kingdom corporation, J.
Rothschild Capital Management Limited, a United Kingdom
corporation, St. James's Place Capital plc, a United Kingdom
corporation, Mr. Putnam L. Crafts, Jr. and Mr. James H.
Kasschau in connection with their ownership of shares of
common stock, par value $1.00 per share, of SPS
Technologies, Inc., a Pennsylvania corporation. Unless
otherwise defined herein, all capitalized terms used herein
shall have the meanings ascribed to them in the Schedule
13D.
Item 6. Contracts, Arrangements, Understandings
or Relationships with Respect to
Securities of the Issuer.
Item 6 is hereby amended and supplemented by
adding the following:
On November 17, 1994, the Registration Statement
was declared effective by the Commission and the Issuer
announced that the Subscription Price and Expiration Date
have been set at $24.50 and December 16, 1994, respectively.
The Reporting Persons and the Issuer entered into the
Standby Agreement and the Registration Rights Agreement
discussed in Item 4 under the captions "Standby Agreement"
and "The Registration Rights Agreement" as of November 16,
1994. In addition, the Issuer has entered into the
amendment to the Rights Agreement discussed in Item 4 under
the caption "Standby Agreement--Rights Agreement Amendment."
To the extent applicable, see the description of such
agreements contained in Item 4 above and the copies of such
agreements filed herewith as Exhibits 10, 11 and 12 and
incorporated herein by reference.
Item 7. Material to be Filed as Exhibits.
Item 7 is hereby amended and supplemented by
adding the following exhibits:
Exhibit 10: Standby Agreement, dated as of
November 16, 1994, by and among the Issuer and the Reporting
Persons.
Exhibit 11: Registration Rights Agreement, dated
as of November 16, 1994, by and among the Issuer and the
Reporting Persons.
Exhibit 12: Amendment No. 2 to the Rights
Agreement, dated as of November 16, 1994, between the Issuer
and Mellon Bank (East), N.A.
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: November 17, 1994
TINICUM ENTERPRISES, INC.
By: /s/ James H. Kasschau
James H. Kasschau
President
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: November 17, 1994
TINICUM INVESTORS
By: /s/ Eric M. Ruttenberg
Eric M. Ruttenberg
General Partner
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: November 17, 1994
RUTCO INCORPORATED
By: /s/ James H. Kasschau
James H. Kasschau
President
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: November 17, 1994
TINICUM FOREIGN INVESTMENTS CORPORATION
By: /s/ James H. Kasschau
James H. Kasschau
President
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: November 17, 1994
TINICUM ASSOCIATES, G.P.
By: Tinicum Associates, Inc.,
Managing Partner
By: /s/ James H. Kasschau
James H. Kasschau
President
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: November 17, 1994
RIT CAPITAL PARTNERS plc
By: /s/ Clive Gibson
Clive Gibson
Director
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: November 17, 1994
J. ROTHSCHILD CAPITAL MANAGEMENT LIMITED
By: /s/ P.R. Griffiths
P.R. Griffiths
Director
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: November 17, 1994
ST. JAMES'S PLACE CAPITAL plc
By: /s/ Clive Gibson
Clive Gibson
Director
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: November 17, 1994
/s/ Putnam L. Crafts, Jr.
Putnam L. Crafts, Jr.
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: November 17, 1994
/s/ James H. Kasschau
James H. Kasschau
EXHIBIT INDEX
Exhibit 10: Standby Agreement, dated as of
November 16, 1994, by and among the Issuer and the Reporting
Persons.
Exhibit 11: Registration Rights Agreement, dated
as of November 16, 1994, by and among the Issuer and the
Reporting Persons.
Exhibit 12: Amendment No. 2 to the Rights
Agreement, dated as of November 16, 1994, between the Issuer
and Mellon Bank (East), N.A.
EXHIBIT 10
STANDBY PURCHASE AGREEMENT
STANDBY PURCHASE AGREEMENT, dated as of November 16, 1994
(the "AGREEMENT"), by and among the Persons listed on Schedule I
hereto (each a "PURCHASER" and collectively the "PURCHASERS"),
the Persons listed on Schedule II hereto (each an "INVESTOR" and
collectively the "INVESTORS") and SPS TECHNOLOGIES, INC., a
Pennsylvania corporation (the "COMPANY"). Purchasers, Investors
and the Company are sometimes collectively referred to as the
"PARTIES" or individually as a "PARTY".
RECITALS
A. In connection with the raising of funds to reduce debt
under the Company's Bank Credit Agreement and for other corporate
purposes, the Company proposes to distribute to the record
holders of its common stock, par value $1.00 per share (the
"COMMON STOCK"), subscription rights (the "SUBSCRIPTION RIGHTS")
to subscribe for and purchase up to approximately 515,000 shares
of Common Stock (together with a like number of associated rights
under the Company's Amended Rights Agreement (as defined below),
the "UNDERLYING SHARES") at a purchase price of $24.50 per share
(the "SUBSCRIPTION PRICE").
B. The Company desires to sell to Purchasers, and
Purchasers desire to purchase from the Company all Underlying
Shares which, as of the date the Subscription Rights expire (the
"EXPIRATION DATE"), have not been subscribed for by the exercise
of the Subscription Rights (the "REMAINING SHARES").
C. The issuance of the Subscription Rights and the purchase
of the Common Stock upon the exercise of the Subscription Rights
are herein collectively referred to as the "RIGHTS OFFERING".
D. Contemporaneously with the execution of this Agreement,
the Company will (i) amend the Rights Agreement dated as of
November 11, 1988, and amended by Amendment No. 1 thereto dated
as of January 22, 1991 between the Company and Mellon Bank (East)
N.A., as Rights Agent, by executing Amendment No. 2 thereto dated
as of November 16, 1994, substantially in the form attached
hereto as Exhibit A ("AMENDMENT NO. 2") (collectively the
"AMENDED RIGHTS AGREEMENT"); and (ii) enter into the Registration
Rights Agreement among the Company, Purchasers and Investors,
dated as of November 16, 1994 (the "REGISTRATION RIGHTS
AGREEMENT").
E. The Rights Offering and the purchase of the Remaining
Shares by Purchasers pursuant to this Agreement, the Amended
Rights Agreement and the Registration Rights Agreement are herein
collectively referred to as the "TRANSACTIONS".
NOW, THEREFORE, in consideration of the promises and the
mutual covenants and agreements of the Parties, and other good
and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, and subject to the terms and
conditions hereof, the Parties agree as follows:
1. TERMS OF THE RIGHTS OFFERING
The terms of the Rights Offering will be as follows:
1.1 THE RIGHTS OFFERING. The Company will distribute to
holders of Common Stock on the record date established by the
Board of Directors, Subscription Rights to subscribe for and
purchase the Underlying Shares. No fractional Subscription
Rights or cash in lieu thereof will be distributed or paid by the
Company.
1.2 BASIC SUBSCRIPTION PRIVILEGE. Each holder of
Subscription Rights will be entitled to purchase at the
Subscription Price, on or prior to the Expiration Date (which
shall not be later than December 16, 1994, or such further date
as the Expiration Date may be extended to pursuant to Section 1.3
hereof), one share of Common Stock (and one (1) right issued
pursuant to the Amended Rights Agreement (the "RIGHTS")) for each
Subscription Right held (the "BASIC SUBSCRIPTION PRIVILEGE").
Purchasers shall exercise Purchasers' Basic Subscription
Privilege by payment in full of the Subscription Price prior to
the Expiration Date and otherwise pursuant to the terms of this
Agreement and the Rights Offering.
1.3 REGISTRATION STATEMENT. The Company has filed with the
Securities and Exchange Commission ("SEC") a registration
statement on Form S-3 (as it has been amended by Amendment No. 1
thereto and as it may be further amended, the "REGISTRATION
STATEMENT") under the 1933 Act, including the prospectus included
therein (as it has been amended by Amendment No. 1 to the
Registration Statement and as it may be further amended, the
"PROSPECTUS") for the registration under the 1933 Act of the
offering and sale of the Underlying Shares. The Company may file
one or more amendments to the Registration Statement or
Prospectus, each of which will be furnished to and consented to
by Purchasers prior to the filing thereof with the SEC, which
consent shall not be unreasonably withheld or delayed (it being
understood that the withholding of such consent shall be deemed
to be reasonable if the proposed amendment reflects a change in
the size of the Rights Offering, the Subscription Price, an
extension of the Expiration Date by more than twenty (20) days,
or a material modification of any other principal term of the
Rights Offering).
1.4 OTHER TERMS AND AMENDMENTS TO THE RIGHTS OFFERING.
Subject to the provisions of paragraphs 1.1 and 1.2, all other
terms of the Rights Offering are as described in the Prospectus.
2. PURCHASE AND SALE OF REMAINING SHARES
2.1 PURCHASE AND SALE OF REMAINING SHARES. Upon the terms
and conditions of this Agreement, the Company shall sell to
Purchasers, and Purchasers shall purchase from the Company the
Remaining Shares. The closing of the purchase of the Remaining
Shares by Purchasers (the "CLOSING"/"CLOSING DATE") will take
place (i) on the fifth (5th) business day following the
Expiration Date, or (ii) at such other time and date as the
Parties may designate by mutual written agreement. At Closing,
the Company shall deliver to Purchasers (or their representative)
stock certificates representing the Remaining Shares registered
in the names and denominations requested by Purchasers in a
written notice delivered to the Company at least two (2) business
days prior to the Closing Date. Purchasers shall pay the
aggregate purchase price for the Remaining Shares by delivery to
the Company by wire transfer of immediately available funds in an
amount equal to the result obtained by multiplying (x) the
Subscription Price by (y) the number of Remaining Shares.
2.2 It is understood and agreed among the Parties that in
no event shall the total size of the Rights Offering exceed
515,000 shares or $12,617,500 in gross proceeds.
2.3 PURCHASERS' ACQUISITION AND BENEFICIAL OWNERSHIP OF
STOCK. Purchasers covenant and agree that Purchasers (i) will
exercise their Basic Subscription Privilege in full, and (ii)
will purchase the Remaining Shares at the Subscription Price at
Closing. Further, the Company acknowledges that (x) Purchasers
may acquire Subscription Rights from other shareholders and
exercise the Basic Subscription Privilege associated therewith
prior to the Expiration Date, and (y) Purchasers and Investors
may purchase shares of Common Stock after the Rights Offering.
3. PURCHASER'S AND INVESTOR'S REPRESENTATIONS AND WARRANTIES
3.1 PURCHASER'S AND INVESTOR'S REPRESENTATIONS AND
WARRANTIES. Each Purchaser and Investor individually represents
and warrants to the Company that:
3.1(a) If such Purchaser or Investor is other than an
individual, such Purchaser or Investor is duly authorized and has
all requisite corporate or other power to execute, deliver and
perform this Agreement and the Registration Rights Agreement and
to consummate the Transactions contemplated hereby and thereby,
and no other corporate or other proceedings on the part of such
Purchaser or Investor are necessary;
3.1(b) This Agreement and the Registration Rights
Agreement have been duly executed and delivered by such Purchaser
or Investor and, assuming due execution and delivery of this
Agreement and the Registration Rights Agreement by the Company,
each is a valid and binding agreement of such Purchaser or
Investor and is enforceable against such Purchaser or Investor in
accordance with its terms, except to the extent that (i)
enforcement hereof may be limited by (A) bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally, and (B) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity), and (ii) rights to contribution
and indemnification may be violative of the public policy
underlying any law, rule or regulation (including any federal or
state securities law, rule or regulation);
3.1(c) If such Purchaser or Investor is other than an
individual, the execution, delivery and performance by such
Purchaser or Investor of this Agreement and the Registration
Rights Agreement and the purchase of and Beneficial Ownership of
the Common Stock by such Purchaser pursuant to this Agreement
does not violate or conflict with or result in a breach of or
constitute (or with notice or lapse of time or both constitute) a
default under such Purchaser's or Investor's certificate of
incorporation, partnership agreement or by-laws or similar
organizational documents;
3.1(d) No consent, approval, waiver, permit, order or
authorization of, or registration, declaration, notification or
filing with any governmental authority is required, with respect
to such Purchaser or Investor acting individually or the
Purchasers or Investors acting collectively, in connection with
execution and delivery of this Agreement, the Rights Offering,
the Registration Rights Agreement and the Amended Rights
Agreement by Purchasers and Investors or the consummation of the
Transactions contemplated hereby and thereby by Purchasers and
Investors, except with respect to (i) the 1933 Act; (ii) the 1934
Act; (iii) the blue sky laws of various states; (iv) the
requirements of the New York Stock Exchange (the "EXCHANGE
REQUIREMENTS"); and (v) a "no action letter" to Purchasers from
the SEC with respect to Purchasers' compliance with the 1934 Act
in connection with purchases of Subscription Rights contemplated
by paragraph 2.3 hereof (the "NO ACTION LETTER");
3.1(e) Such Purchaser is acquiring the Common Stock
for his or its own account for the purpose of investment and not
with a view to or for sale in connection with any distribution
thereof;
3.1(f) The Transactions to be consummated pursuant to
this Agreement by Purchasers and Investors on or prior to the
Closing Date hereunder are not subject to the reporting
requirements of the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended (the "HSR ACT"); and
3.1(g) Purchasers have adequate capital to fulfill
their obligations under this Agreement.
3.2 LIMITED REPRESENTATIONS AND WARRANTIES. Except as set
forth in this Section 3, the Purchasers and Investors make no
other representation, express or implied, to the Company.
4. COMPANY'S REPRESENTATIONS AND WARRANTIES
4.1 COMPANY'S REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Purchasers and Investors that:
4.1(a) The Company is a corporation duly organized, in
good standing and presently subsisting under the laws of the
Commonwealth of Pennsylvania and has the corporate power to own
its respective properties and to carry on its respective
businesses as now being conducted, and is in good standing in
every jurisdiction in which the nature of the respective business
conducted or property owned by it makes such qualification
necessary, except for a failure which would not have a material
adverse effect on the business, financial condition, liabilities
or results of operations of the Company and its subsidiaries;
4.1(b) The Company is duly authorized and has all
requisite corporate power to execute, deliver and perform this
Agreement, the Rights Offering, the Amended Rights Agreement and
the Registration Rights Agreement and to consummate each of the
Transactions contemplated hereby and thereby, and no other
corporate or other proceedings on the part of the Company are
necessary;
4.1(c) Each of this Agreement, the Amended Rights
Agreement and the Registration Rights Agreement has been duly
executed and delivered by the Company, is a valid and binding
agreement of the Company, and assuming due execution and delivery
of this Agreement and the Registration Rights Agreement by the
Purchasers and Investors, is enforceable against the Company in
accordance with its terms, except to the extent that (i)
enforcement hereof may be limited by (A) bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally, and (B) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity), and (ii) rights to contribution
and indemnification may be violative of the public policy
underlying any law, rule or regulation (including any federal or
state securities law, rule or regulation);
4.1(d) The execution, delivery and performance by the
Company of this Agreement, the Rights Offering, the Rights
Agreement and the Registration Rights Agreement do not violate or
conflict with or result in a breach of or constitute or give rise
to (or with notice or lapse of time or both constitute or give
rise to) a default or a right of acceleration or termination
under (i) the Articles of Incorporation or Bylaws (or any similar
organizational document) of the Company or any of its
subsidiaries, or (ii) any indenture, mortgage, bond, license,
lease, permit, loan or credit agreement or any other material
agreement to which the Company or any of its subsidiaries is a
party, or by which the Company or any of its subsidiaries, or any
of its or their properties or assets may be bound, or (iii) any
statute, law, rule or regulation or any judgment or award, or any
order, writ, injunction or decree pertaining to the Company or
any of its subsidiaries;
4.1(e) No consent, approval, waiver, permit, order or
authorization of, or registration, declaration, notification or
filing with any governmental authority is required in connection
with the execution and delivery of this Agreement, the Rights
Offering, the Registration Rights Agreement and the Amended
Rights Agreement by the Company or the consummation of the
Transactions contemplated hereby and thereby by the Company,
except with respect to (i) the 1933 Act; (ii) the 1934 Act; (iii)
the blue sky laws of various states; and (iv) the Exchange
Requirements; and provided, however, that with respect to the HSR
Act, this representation is made in reliance upon and subject to
the accuracy of the representation set forth in Section 3.1(f).
4.1(f) The Subscription Rights, when issued and
delivered in accordance with the terms of the Rights Offering,
will be validly issued, and no holder thereof is or will be
subject to personal liability by reason of being such a holder;
the Remaining Shares and the shares of Common Stock issuable upon
the exercise of the Subscription Rights and the Rights to be
issued in connection therewith, when issued or delivered and paid
for in accordance with the terms of the Rights Offering and this
Agreement, will be validly issued, fully paid and non-assessable,
and no holder thereof is or will be subject to personal liability
by reason of being such a holder; and the issuance of the
Remaining Shares and the shares of Common Stock issuable upon the
exercise of the Subscription Rights will not be subject to the
preemptive rights of any shareholder of the Company;
4.1(g) The Company has taken all valid corporate
action to duly reserve such number of its authorized treasury
shares of Common Stock as are deliverable upon consummation of
purchases of Common Stock pursuant to the Rights Offering and
this Agreement, and such shares of Common Stock are listed on the
New York Stock Exchange in accordance with all Exchange
Requirements and will continue to be so listed after the sale
hereof to the Purchasers;
4.1(h) The authorized capital stock of the Company
consists of 30,000,000 shares of Common Stock;
4.1(i) As of November 16, 1994 (i) 5,118,798 shares of
Common Stock are issued and outstanding, all of which are validly
issued, fully paid and non-assessable, and (ii) 1,253,458 shares
of Common Stock are held in Treasury, and except for the
Subscription Rights, the Rights and 704,102 shares of Common
Stock issuable upon exercise of options granted pursuant to the
"SPS 1988 Long Term Incentive Stock Plan", as amended, there are
no options, warrants, preemptive rights or other rights, or
convertible securities outstanding providing for the issuance by
the Company of any Common Stock or agreements, arrangements or
commitments of any nature relating to the issued or unissued
capital stock of the Company or obligating the Company to issue
or sell any shares of capital stock or equity interest in the
Company;
4.1(j) The Company has filed all proxy statements,
periodic reports (and any amendments thereto) and other documents
required to be filed by it under the 1934 Act (collectively the
"SEC REPORTS") and has made available to the Purchasers and
Investors copies of its Annual Report on Form 10-K for the fiscal
years ended December 31, 1993 and 1992, its Quarterly Report on
Form 10-Q for the quarters ended March 31, 1994, June 30, 1994
and September 30, 1994, and the Company's Current Report on Form
8-K dated January 5, 1994, each as filed with the SEC;
4.1(k) Each SEC Report is in compliance as to form in
all material respects with the requirements of its respective
report form and does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein in the light of the circumstances under
which they were made not misleading, except as may have been
amended or supplemented in a subsequently filed SEC Report filed
prior to the date hereof;
4.1(l) The financial statements (including any related
schedules and/or notes) included or incorporated by reference in
the SEC Reports were prepared in accordance with generally
accepted accounting principles consistently applied (except as
indicated in the notes thereto) throughout the periods involved
and fairly present the consolidated financial condition, results
of operations and changes in financial position of the Company
and its subsidiaries as of the dates thereof and for the periods
ended on such dates (in each case subject, as to interim
statements, to changes resulting from year-end adjustments);
4.1(m) There has been no material adverse change in
the business, financial condition, liabilities, or results of
operations of the Company and its subsidiaries from that set
forth in the balance sheet as of December 31, 1993, included in
or incorporated by reference in the SEC Reports, other than
changes disclosed or referred to in any subsequently filed SEC
Reports filed prior to the date hereof or otherwise publicly
disclosed by the Company since December 31, 1993, or as disclosed
in the Prospectus;
4.1(n) There is no action, suit, investigation or
proceeding pending or, to the knowledge of the Company,
threatened by any public official or governmental authority,
against the Company, or any of its subsidiaries or any of their
respective properties or assets or before any court, arbitrator
or governmental body, department, commission, board, bureau,
agency or instrumentality, which (i) questions the validity of or
seeks to restrain this Agreement or the Rights Offering, or any
action taken or to be taken pursuant hereto or thereto, or (ii)
except as is set forth in the SEC Reports or as disclosed in the
Prospectus, which would result in any material adverse change in
the business, financial condition, liabilities or results of
operations of the Company and its subsidiaries; and
4.1(o) The operations of the Company and its
subsidiaries are being conducted in compliance in all material
respects with all laws, regulations and ordinances, including,
without limitation, those relating to pollution and the discharge
of materials into the environment, equal employment opportunity
and employee safety, in all jurisdictions in which the Company
and its subsidiaries are presently doing business, except where
the failure to effect such compliance would not have a material
adverse effect on the business, results of operations or
financial condition of the Company and its subsidiaries or as
disclosed in the Prospectus; the Company will use commercially
reasonable efforts to comply with all such laws and regulations
which may be legally applicable in the future in jurisdictions in
which the Company and its subsidiaries may then be doing
business;
4.1(p) The Company, pursuant to the Rights Offering
and this Agreement, is selling, conveying, transferring,
assigning and delivering to each Purchaser of Common Stock all
right, title and interest in and to such Common Stock being
purchased by each such Purchaser, and the sale and delivery of
such Common Stock will vest in the Purchasers good, valid and
marketable title to such shares, free and clear of all
restrictions (other than those imposed by the terms of this
Agreement, the Registration Rights Agreement, the Amended Rights
Agreement and applicable securities laws) and liens, security
interests or adverse claims of any kind and nature assuming that
the Purchasers purchased such Common Stock in good faith without
notice of any adverse claims;
4.1(q) The Company is not in default under, nor does
any party have a right of acceleration or termination under, nor
does any condition exist whereupon lapse of time or with notice
will give rise to such a default or right of acceleration or
termination under any indenture, mortgage, bond, license, lease,
permit or loan agreement or any other agreement to which the
Company or any of its subsidiaries is a party or by which any of
their respective properties or assets may be bound, except to the
extent such default is not reasonably likely to result in a
material adverse change in the business, financial condition,
liabilities or results of operations of the Company and its
subsidiaries;
4.1(r) The Registration Statement complies in all
material respects with the requirements of the 1933 Act, and the
Prospectus does not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading;
4.1(s) From the date of commencement of the Rights
Offering until the Closing Date, the Company will not engage in
any other public distribution of any of its securities; and
4.1(t) No representation or warranty contained in this
Agreement and no statement contained in any other writing
provided to the Purchasers by the Company in connection with the
Transactions contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make such
representation, warranty or statement not misleading.
4.2 LIMITED REPRESENTATIONS AND WARRANTIES OF COMPANY.
Except as set forth in this Section 4, the Company makes no
representation, express or implied, to the Purchasers and
Investors.
5. CONDITIONS TO THE OBLIGATIONS OF PURCHASERS AND INVESTORS
5.1 CONDITIONS TO THE OBLIGATIONS OF PURCHASERS AND
INVESTORS. The obligation of Purchasers and Investors to
consummate the Transactions is subject to the fulfillment, on or
before the Closing Date, of all of the following conditions
(except such of the following as will have been expressly waived
in writing by Purchasers and Investors prior to the Closing
Date):
5.1(a) The representations and warranties of the
Company contained in this Agreement will have been true and
correct as of the date of this Agreement and as of the Closing
Date, and the Company will have performed and complied in all
material respects with all of its covenants and agreements
required by this Agreement to be performed or complied with by it
hereunder at or prior to the Closing Date;
5.1(b) All consents, approvals, permits and
authorizations required to be obtained from, and all filings
required to be made with, any governmental authority in
connection with the consummation of the Transactions will have
been obtained or made;
5.1(c) The Registration Statement will have become
effective; if the filing of the Prospectus, or any supplement
thereto, is required pursuant to rule 424(b) of the 1933 Act, the
Prospectus, and any such supplement, will be filed in the manner
and within the time period required by Rule 424(b) of the 1933
Act; and no stop order suspending the effectiveness of the
Registration Statement will have been issued and no proceedings
for that purpose will have been instituted or threatened;
5.1(d) No litigation relating to the Rights Offering,
this Agreement, the Registration Rights Agreement or Amendment
No. 2 will be pending or, to the knowledge of any director or
executive officer of the Company, threatened (orally or in
writing), nor will any injunction relating thereto have been
issued or any proceeding therefor be pending or, to the knowledge
of any director or executive officer of the Company, threatened
(orally or in writing);
5.1(e) Except as otherwise consented to by the
Purchasers and Investors, the terms of the Rights Offering
contained in the Prospectus will not conflict with the provisions
of this Agreement including, without limitation, the recitals and
Section 1 hereof;
5.1(f) The Rights Offering will have been completed;
5.1(g) The Underlying Shares and the Remaining Shares
continue to be listed on the New York Stock Exchange, and no
Party shall have been advised by the New York Stock Exchange or
otherwise that an issue exists with respect to such listing;
5.1(h) An amount equal to one-half of 1% of the gross
proceeds to be received by the Company in connection with the
Transactions shall have been paid by the Company to Purchasers as
reimbursement to Purchasers for certain expenses incurred by them
in connection with the Rights Offering (the "EXPENSE
REIMBURSEMENT"); and
5.1(i) Purchasers and Investors will have received a
legal opinion of Aaron Nerenberg, General Counsel of the Company,
in substantially the form attached hereto as Exhibit B.
5.2 CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The
obligation of the Company to consummate the Transactions is
subject to the fulfillment, on or before the Closing Date, of the
following conditions (except such of the following conditions as
will have been expressly waived in writing by the Company on or
prior to the Closing Date):
5.2(a) The representations and warranties of
Purchasers and Investors contained in this Agreement will have
been true and correct at and as of the date of this Agreement and
as of the Closing Date, and Purchasers and Investors will have
performed and complied in all material respects with all of their
covenants and agreements required by this Agreement to be
performed or complied with by them hereunder at or prior to the
Closing Date;
5.2(b) All consents, approvals, permits and
authorizations required to be obtained from, and all filings
required to be made with, any governmental authority in
connection with the consummation of the Transactions will have
been obtained or made;
5.2(c) The Registration Statement will have become
effective; if the filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b) of the 1933 Act, the
Prospectus, and any such supplement, will be filed in the manner
and within the time period required by Rule 424(b) of the 1933
Act; and no stop order suspending the effectiveness of the
Registration Statement will have been issued and no proceedings
for that purpose will have been instituted or threatened; and
5.2(d) The Rights Offering will have been completed.
6. INDEMNIFICATION
6.1 INDEMNIFICATION OF PURCHASERS AND INVESTORS BY THE
COMPANY. The Company hereby agrees to indemnify and hold
harmless Purchasers, Investors, each other Person, if any, which
controls any Purchaser or Investor within the meaning of the 1933
Act, and their respective officers, directors, partners and
Affiliates (collectively, the "INDEMNITEES") against any losses,
claims, damages, expenses or liabilities, joint or several, to
which the Indemnitees may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages, expenses or
liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement or
the Prospectus contained therein, or any amendment or supplement
thereof, 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, in
light of the circumstances under which they were made, not
misleading, or (ii) the Rights Offering, this Agreement, the
Amended Rights Agreement and the Registration Rights Agreement,
and will reimburse the Indemnitees for any legal or other
expenses reasonably incurred by them in connection with
investigating, defending or settling any such loss, claim,
damage, expense, liability or action; provided, however, that the
Company will not be liable in any such case (x) described in
paragraph 6.1(i) if and to the extent that any such loss, claim,
damage, expense or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission so made in reliance upon and in conformity with
information pertaining to the Indemnitees (as opposed to
information pertaining to the Company, the Rights Offering
generally or this Agreement and the other agreements related
thereto generally) furnished to the Company by any Indemnitee in
writing specifically for use in the Registration Statement or the
Prospectus, or (y) described in paragraph 6.1(ii) if and to the
extent that any such loss, claim, damage, expense or liability is
found in a final judgment by a court of competent jurisdiction to
have resulted from the bad faith or gross negligence of the
Indemnitees, or to have resulted from Purchasers' violation of
Rule 10b-6, 10b-7 or 10b-8 under the 1934 Act, unless the actions
were performed at the written request of or with the written
consent of the Company; provided further, however, that in no
event shall the Company be obligated to indemnify and hold
harmless the Indemnitees against losses which the Indemnitees may
incur solely as a result of the price at which the Indemnitees
acquired Subscription Rights or Common Stock in connection with
the Rights Offering. Such indemnity will remain in full force
and effect regardless of any reasonable investigation made by or
on behalf of the Indemnitees.
6.2 INDEMNIFICATION OF THE COMPANY BY PURCHASERS AND
INVESTORS. Purchasers and Investors hereby agree to indemnify
and hold harmless the Company, each Person, if any, who controls
the Company within the meaning of the 1933 Act, and each officer
and director of the Company against all losses, claims, damages,
expenses or liabilities to which the Company or such officer or
director or controlling Person may become subject under the 1933
Act or otherwise, insofar as such losses, claims, damages,
expenses or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration
Statement or the Prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the
omission to state therein a 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, and
will reimburse the Company and each such officer, director and
controlling Person for any legal or other expenses reasonably
incurred by them in connection with investigating, defending or
settling any such loss, claim, damage, expense, liability or
action; provided, however, that Purchasers and Investors will be
liable hereunder in any such case, if and only to the extent that
any such loss, claim, damage, expense or liability arises out of
or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon and in
conformity with information pertaining to Purchasers, Investors
or their controlling Persons (as opposed to information
pertaining to the Company, the Rights Offering generally or this
Agreement and the other agreements related thereto generally)
that is furnished in writing to the Company by Purchasers or
Investors specifically for use in the Registration Statement or
the Prospectus.
6.3 INDEMNIFICATION CLAIM BY EITHER PARTY. Promptly after
receipt by an indemnified Party hereunder of notice of the
commencement of any action, such indemnified Party will, if a
claim in respect thereof may be made against the indemnifying
Party hereunder, notify the indemnifying Party in writing
thereof, but the omission so to notify the indemnifying Party
will not relieve the indemnifying Party from any liability which
the indemnifying Party may have to any indemnified Party
hereunder except to the extent such indemnifying Party is
prejudiced by such failure to so notify, nor will it relieve the
indemnifying Party from any liability which the indemnifying
Party may have to any indemnified Party other than under this
Agreement. In case any such action will be brought against any
indemnified Party, it will notify the indemnifying Party of the
commencement thereof and the indemnifying Party will be entitled
to participate in and, to the extent it wishes, to assume and
undertake the defense thereof with counsel satisfactory to such
indemnified Party, and after notice from the indemnifying Party
to such indemnified Party of its election so to assume and
undertake the defense thereof, the indemnifying Party will not be
liable to such indemnified Party under this Section 6 for any
legal expenses subsequently incurred by such indemnified Party in
connection with the defense thereof; provided, however, that, if
the defendants in any such action include both the indemnified
Party and the indemnifying Party and the indemnified Party will
have reasonably concluded that there may be reasonable defenses
available to it which are different from or additional to those
available to the indemnifying Party or if the interests of the
indemnified Party reasonably may be deemed to conflict with the
interests of the indemnifying Party, the indemnified Party will
have the right to select separate counsel and to control the
defense of such action, with the reasonable expenses and fees of
such separate counsel and other reasonable expenses related to
such participation to be reimbursed by the indemnifying Party as
incurred.
In any such action, any indemnified Party will have the
right to retain its own counsel, but, except as provided above,
the fees and disbursements of such counsel will be at the expense
of such indemnified Party unless (i) the indemnifying Party will
have failed to retain counsel for the indemnified Party as
aforesaid, or (ii) the indemnifying Party and such indemnified
Party will have mutually agreed to the retention of such counsel.
It is understood that the indemnifying Party will not, in
connection with any action or related actions in the same
jurisdiction, be liable for the fees and disbursements of more
than one separate law firm qualified in such jurisdiction to act
as counsel for the indemnified Party and will not be obligated to
pay the fees and expenses of more than one counsel (and any
required local counsel) for all parties indemnified by such
indemnifying Party with respect to such claim, unless in the
reasonable judgment of any indemnified Party the interests of
such indemnified Party may be deemed to conflict with any other
of such indemnified Parties with respect to such claim. The
indemnifying Party will not be liable for any settlement of any
proceeding effected without its prior written consent. With such
consent in the case of a settlement, or if there be a final
judgment for the plaintiff, the indemnifying Party agrees to
indemnify the indemnified Party from and against any loss or
liability by reason of such settlement or judgment.
6.4 CONTRIBUTION. If the indemnification provided for in
this Section 6 is unavailable for any reason or insufficient to
hold harmless an indemnified Party in respect of any losses,
claims, damages, liabilities or actions referred to herein, then
each indemnifying Party will in lieu of indemnifying such
indemnified Party contribute to the amount paid or payable by
such indemnified Party as a result of such losses, claims,
damages, liabilities or actions in such proportion as is
appropriate to reflect the relative fault of the Company, on the
one hand, and Purchasers and Investors, on the other hand, in
connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or actions as well as
any other relevant equitable considerations. The relative fault
will be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact relates
to information supplied by the Company, on the one hand, or
Purchasers and Investors, on the other hand, and to the Parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Parties
hereto agree that it would not be just and equitable if
contribution pursuant to this paragraph were determined by any
method of allocation which did not take account of the equitable
considerations referred to above in this paragraph. Subject to
the provisions of this Section 6, the amount paid or payable by
an indemnified Party as a result of the losses, claims, damages,
liabilities or actions in respect thereof, referred to above in
this paragraph, will be deemed to include any legal or other
expenses reasonably incurred by such indemnified Party in
connection with investigating or defending any such action or
claim.
6.5 PURCHASERS' AND INVESTORS' LIMITED INDEMNIFICATION AND
CONTRIBUTION. In no event shall Purchasers' and Investors'
aggregate indemnification and contribution obligations under this
Section 6 exceed the amount obtained by multiplying the
Subscription Price by the number of Remaining Shares.
7. AMENDMENT OF AMENDED RIGHTS AGREEMENT
7.1 AMENDMENT OF AMENDED RIGHTS AGREEMENT.
Contemporaneously with the execution of this Agreement, the
Company has executed the Amended Rights Agreement, and agrees
until November 16, 2000 to further amend or supplement the
Amended Rights Agreement as necessary to ensure that neither the
Purchasers, Investors nor their respective Affiliates,
individually or together, shall be deemed an "Acquiring Person"
(as defined in the Amended Rights Agreement) or are the cause of
a "Section 11(a)(ii) Event" (as defined in the Amended Rights
Agreement) by virtue solely of their acquisition and Beneficial
Ownership of the Common Stock with voting power not in excess of
the "PERCENTAGE LIMITATION" (as defined in paragraph 14.3).
7.2 ACTION BY BOARD OF DIRECTORS. The Board of Directors
of the Company has, pursuant to Subchapter F of Chapter 25 of the
Pennsylvania Business Corporation Law ("SUBCHAPTER F"), taken all
necessary and appropriate action to provide that the restrictions
on "business combinations" (as defined in SECTION2554 of Subchapter F)
set forth in Subchapter F will not apply to any of the
Purchasers, Investors or their Affiliates with respect to their
acquisition of Common Stock having voting power in excess of 20%
of the Total Voting Power; provided, that the acquisition of
Common Stock or any other event which would render such
Purchasers, Investors or Affiliates an "interested shareholder"
(as defined in SECTION2553 of Subchapter F) does not result in the
Purchasers, Investors and their Affiliates, individually or
together, Beneficially Owning Common Stock with voting power in
excess of the Percentage Limitation.
7.3 FURTHER AMENDMENT OF AMENDED RIGHTS AGREEMENT. If,
prior to November 16, 2000, the Company shall amend or supplement
the Amended Rights Agreement to increase the "Acquiring Person"
and "Section 11(a)(ii) Event" threshold percentage above eighteen
percent (18%) (including, without limitation, by way of any
amendment of the definition of "Exempted Person" under the
Amended Rights Agreement) generally or with respect to any
particular Person or otherwise allow any other Person to become
the Beneficial Owner of Common Stock representing in excess of
18% of the Total Voting Power, then, (i) the Percentage
Limitation shall be automatically increased to 110% of such
increased threshold percentage, provided, however, that with
respect to any amendment of the "Exempted Person" definition to
authorize an increase in the Beneficial Ownership to more than
thirty percent (30%) of the Common Stock (the "GABELLI GROUP
INCREASE") by the group known as GAMCO Investors/Gabelli Funds,
Inc. (as constituted for purposes of the most recent Schedule
13D, filed by such group prior to the date hereof), the
Percentage Limitation shall be increased pro-rata to the Gabelli
Group Increase, and (ii) the Company shall take all action
necessary to permit Purchasers, Investors and their Affiliates to
acquire or Beneficially Own Common Stock not in excess of the
Percentage Limitation, including, without limitation, any
necessary amendment of the Amended Rights Agreement.
7.4 PURCHASERS' RESTRICTIONS ON ACQUISITION OF COMMON
STOCK. Except for this Agreement, the Amended Rights Agreement,
the Registration Rights Agreement, Section 3.11 of the Company's
Bylaws, Subchapter F and applicable securities laws (and assuming
receipt by Purchasers of the No Action Letter), the Company is
unaware of any restrictions on the Purchasers', Investors' or
their Affiliates' ability to acquire shares of Common Stock or
exercise rights relating to shares of Common Stock. The Company
shall not (i) take any action to prevent or interfere with the
Purchasers', Investors' or their Affiliates' ability to legally
acquire or Beneficially Own Common Stock with voting power not in
excess of the Percentage Limitation or (ii) take any action that
would interfere with or adversely affect the Purchasers',
Investors' or their Affiliates' rights with respect to Common
Stock having voting power not in excess of the Percentage
Limitation.
8. PURCHASERS' AND INVESTORS' RESTRICTIONS
8.1 PURCHASERS' AND INVESTORS' RESTRICTIONS. Purchasers
and Investors agree that until the earlier of (x) two (2) weeks
prior to the deadline for the submission of shareholder proposals
or shareholder nominees to the Board of Directors in connection
with the Company's annual meeting of its shareholders scheduled
for the calendar year 2000 (it being understood that the Company
shall provide the Purchasers and Investors with at least two (2)
weeks' prior notice of such deadline), and (y) November 16, 2000,
without the Company's prior written consent, Purchasers and
Investors will not and will cause their Affiliates not to,
directly or indirectly, acting alone or in concert with others:
8.1(a) Make, or in any way participate in, any
"solicitation" of "proxies" (as such terms are defined in
Regulation 14A promulgated by the SEC pursuant to Section 14 of
the 1934 Act) or votes relating to the Common Stock, or other
voting stock of the Company (except as to any proxies that may be
given pursuant to paragraph 8.2), or request, or take any action
to obtain or retain any list of holders of any securities of the
Company for such purposes, or initiate or propose any shareholder
proposal or participate in the making of, or solicit shareholders
for the approval of, one or more shareholder proposals relating
to the Company;
8.1(b) Deposit any shares of Common Stock in a voting
trust or subject any shares of Common Stock to any voting
agreement or arrangements, except for agreements, arrangements or
understandings among any of the Purchasers, Investors or their
Affiliates and except as provided herein;
8.1(c) Form, join or in any way participate in a group
(other than the group consisting of certain of the Purchasers,
Investors and their respective Affiliates, successors and
assigns, as such group was identified in the joint Schedule 13D
filed by certain of the Purchasers and Investors prior to the
date hereof, and as such group may be reconstituted as a result
of the withdrawal from the group of certain members thereof or
the addition to the group of Affiliates of certain members
thereof) with respect to any Common Stock, or any securities the
ownership of which would make the owner thereof a Beneficial
Owner of Common Stock;
8.1(d) Except as expressly contemplated herein, make
any offer or proposal to acquire the Company, its securities or
assets or solicit or propose to effect or negotiate with any
Person any form of business combination or similar transaction
with, a change in control of, or any restructuring,
recapitalization or other extraordinary transaction involving,
the Company, its securities or assets;
8.1(e) Seek representation on the Company's Board of
Directors (except for the Board representation agreed to pursuant
to this Agreement) or the removal of any directors or a change in
the composition or size of the Board of Directors of the Company;
8.1(f) Make any request to amend or waive any
provision of this Agreement, which request would require the
public disclosure by the Company or any Purchaser, Investor or
any Affiliate of a Purchaser or Investor to avoid violating
federal securities law;
8.1(g) Disclose any intent, purpose, plan or proposal
with respect to the Company, its Board of Directors, management,
policies or affairs or its securities or assets or this Agreement
that if effected would result in a violation of any of the
provisions of this paragraph 8.1, including any intent, purpose,
plan or proposal that is conditioned on, or would require waiver,
amendment, nullification or invalidation of, any provision of
this Agreement, or take any action that would require the Company
to make any public disclosure relating to any such intent,
purpose, plan, proposal or condition;
8.1(h) Take any actions challenging the validity or
enforceability, in whole or in part, of the Amended Rights
Agreement as in effect on the date hereof, or proposing, seeking
or compelling the redemption of any Rights (provided that the
foregoing shall not preclude action solely challenging the
validity or enforceability of any amendment to the Amended Rights
Agreement effected after the date hereof); or
8.1(i) Assist, advise, or encourage any Person with
respect to, or seek to do, any of the foregoing; provided that
the Purchasers, Investors and their Affiliates shall not be
prohibited (I) pursuant to the provisions of this paragraph 8.1
from making any offer or proposal if the Company's Board of
Directors requests in writing that such offer or proposal be
made, or (II) pursuant to paragraph 8.1(d) from purchasing
additional securities in open market brokerage transactions,
privately negotiated transactions or transactions with the
Company or any "Subsidiary" (as that term is defined in Rule 12b-
2 under the 1934 Act) of the Company, provided that, after giving
effect to any such purchase, Purchasers, Investors and their
Affiliates do not Beneficially Own Common Stock in excess of the
Percentage Limitation. Anything to the contrary notwithstanding,
nothing in this paragraph 8.1 shall prevent a Purchaser, Investor
or Affiliate thereof in his capacity as a Director of the Company
from discussing with the Company or its Board of Directors any
matter referred to in paragraph 8.1(d) or paragraph 8.1(g),
provided that (y) such discussions do not require disclosure
pursuant to any federal securities law by any Purchaser, Investor
or Affiliate thereof or by the Company, and (z) no Purchaser,
Investor or Affiliate thereof makes any public filing or
disclosure regarding such discussions. Notwithstanding (z) in
the preceding sentence, no Purchaser, Investor or Affiliate
thereof shall be prohibited from making a public filing or
disclosure regarding such discussions if the Company or any of
its Affiliates makes a prior public filing or disclosure
regarding such discussions that the Company was not required to
make pursuant to any federal securities law solely as a result of
such discussions.
Notwithstanding any restriction set forth in paragraph
8.1(a)-(i) to the contrary, if (A) any Person publicly makes a
bona fide offer to acquire a majority of the Company's
outstanding Common Stock and the Company's Board of Directors
does not reject or otherwise take a position in opposition to
such offer within 120 days after such offer is made and such
offer remains outstanding, or (B) any Person makes a bona fide
offer to acquire a majority of the Company's outstanding Common
Stock, and either (i) the Company's Board of Directors has
determined that accepting such offer is in the best interests of
shareholders of the Company, or (ii) the Board of Directors of
the Company decides to seek competing offers or proposes to
effect or negotiate with any Person any form of business
combination or similar transaction with the Company or proposes,
in response to such bona fide offer, a recapitalization, share
repurchase, extraordinary dividend or other similar extraordinary
transaction involving the Company, its securities or assets, the
applicability of the restrictions set forth in paragraph 8.1(a)-
(i) shall be waived without any action on the part of the Company
or the Board of Directors of the Company solely to the limited
extent necessary to allow any Purchaser, Investor or any
Affiliate thereof to make a competing offer to the Company's
Board of Directors to acquire the Company or its securities or
its assets. The Purchasers, Investors and their Affiliates shall
not take any action pursuant to the foregoing sentence that would
require public disclosure of such bona fide offer or competing
offer prior to the public disclosure of such bona fide offer by
either the Company or the offeror thereof.
8.2 QUORUM. Until the earlier of (x) November 16, 2000,
and (y) the day before the date of the Company's annual meeting
of shareholders for calendar year 2000, each Purchaser and
Investor shall take such action as may be required so that all
shares of Common Stock Beneficially Owned directly or indirectly
by it or any Affiliate shall be present for quorum purposes, in
person or represented by proxy, at every meeting of shareholders
of the Company and at any shareholders meeting for the election
of Directors. Each Purchaser and Investor agrees to provide to
the Persons acting as proxies in respect of proxies solicited by
the Board of Directors with a proxy granting such Persons
discretionary votes for the election of Directors at such
meeting, except to the extent that such shares are voted in favor
of the election of Eric M. Ruttenberg (and any other designees to
which the Purchasers and Investors may be entitled pursuant to
this Agreement) to the Board of Directors in order to insure such
election as provided in paragraph 10 of this Agreement.
8.3 VOTING. Until the earlier of (x) November 16, 2000,
and (y) the day before the date of the Company's annual meeting
of shareholders for calendar year 2000, with respect to any
matter submitted to the Company's shareholders for approval, the
Purchasers and Investors covenant and agree that all shares of
Common Stock which are directly or indirectly Beneficially Owned
by the Purchasers, Investors and their Affiliates, other than
those shares of Common Stock which represent voting power of up
to ten percent (10%) of the Total Voting Power (such shares of
Common Stock, other than those representing up to 10% of the
Total Voting Power being, the "RESTRICTED SHARES") (i) will be
voted in accordance with the recommendation of the majority of
the Company's entire Board of Directors, and (ii) with respect to
any matter which, pursuant to the Company's by-laws, requires the
approval of an 80% super majority of the Company's shareholders,
notwithstanding the provisions of the foregoing clause (i) of
this paragraph 8.3, the Restricted Shares will be voted pro-rata
in accordance with the vote of the Company's shareholders
(ignoring, for purposes of determining such pro-rata allocation,
votes cast with respect to shares of Common Stock directly or
indirectly Beneficially Owned by the Purchasers, Investors and
their Affiliates which are not Restricted Shares).
8.4 FIDUCIARY DUTY. Nothing contained in this paragraph 8
shall be deemed in any way to prohibit or limit any Purchaser,
Investor or Affiliate thereof acting in his capacity as a
Director from exercising his fiduciary duties as a Director of
the Company by participating in discussions, voting or other
actions relating to the Board of Directors.
9. RESTRICTIONS ON TRANSFER
9.1 RESTRICTIONS ON TRANSFER. The Purchasers and Investors
covenant and agree that until November 16, 2000, without the
prior written consent of the Company, neither they nor any of
their Affiliates will, directly or indirectly, sell, transfer or
otherwise dispose of (each a "DISPOSITION"), shares of Common
Stock representing in excess of 10% of the Total Voting Power to
any one Person in any transaction or series of transactions,
unless such Person agrees in writing to be bound by the terms of
this Agreement. Upon any Disposition of shares of Common Stock
representing 10% or less of the Total Voting Power to any one (1)
Person in any transaction or series of transactions, such shares
of Common Stock shall no longer be subject to the restrictions
contained in this Agreement.
9.2 LIMITATION ON TRANSFER RESTRICTIONS. Notwithstanding
the fact that paragraph 9.1 may otherwise be applicable, the
restrictions imposed by paragraph 9.1 shall not apply to the
following Dispositions:
9.2(a) The tender of shares of Common Stock pursuant
to any tender offer for shares of Common Stock, or the
Disposition of shares of Common Stock in connection with any
merger, consolidation or other extraordinary transaction
involving the Company;
9.2(b) The Disposition of shares of Common Stock in
connection with a merger, consolidation, liquidation or
dissolution, or the death or incapacity of any Purchaser,
Investor or any Affiliate thereof; provided, that the successors
or distributees of such Purchaser, Investor or Affiliate agree in
writing to be bound by the terms of this Agreement;
9.2(c) The Disposition of shares of Common Stock to
any Purchaser, Investor or any Affiliate thereof; provided, that
such Purchaser, Investor or Affiliate agrees in writing to be
bound by the terms of this Agreement; and
9.2(d) The Disposition of shares of Common Stock
pursuant to a registration right provided for in the Registration
Rights Agreement.
9.3 PLEDGE OF COMMON STOCK. Nothing in this Agreement
shall prohibit a bona fide pledge of, or the granting of a
security interest in, shares of Common Stock to an institutional
lender for money borrowed.
10. REPRESENTATION ON COMPANY BOARD OF DIRECTORS
10.1 MR. RUTTENBERG - BOARD OF DIRECTORS. Eric M.
Ruttenberg ("MR. RUTTENBERG") serves on the Company's Board of
Directors as a member of Class III, having been elected at the
1993 annual meeting of the shareholders and will be subject to
re-election at the 1996 annual meeting of the shareholders. The
Company agrees that during the period that this Agreement is in
effect, the Company will exercise all authority under applicable
law to cause Mr. Ruttenberg to be re-elected or appointed to the
Company's Board of Directors, including, without limitation, (i)
including Mr. Ruttenberg in the slate of nominees recommended by
the Board of Directors to the shareholders at each annual meeting
of the shareholders at which the Class III Directors are
scheduled for election, (ii) soliciting proxies in favor of the
election of Mr. Ruttenberg, and (iii) voting discretionary
proxies in favor of the election of Mr. Ruttenberg.
Notwithstanding the foregoing, if, the Board of Directors
reasonably determines by a two-thirds (2/3) majority vote at a
duly constituted meeting of the Board of Directors that Mr.
Ruttenberg's nomination to serve as a member of the Board of
Directors would be materially adverse to the interests of the
Company due to Mr. Ruttenberg's conviction of a crime or other
conduct bearing on Mr. Ruttenberg's integrity, the Purchasers and
Investors may designate another individual to be appointed to the
Board of Directors pursuant to paragraph 10.3.
10.2 ADDITIONAL DIRECTORS. In the event that the number of
members of the Company's Board of Directors shall be more than
eight (8), the Purchasers and Investors, during the period that
this Agreement is in effect, shall be entitled to propose an
individual to fill the first out of each three (3) Board
positions beyond eight (8) (for example, the Purchasers and
Investors shall be entitled to nominate the individual to fill
the ninth, twelfth, etc. position on the Board of Directors). An
individual or individuals proposed by the Purchasers and
Investors reasonably acceptable to the Company's Board of
Directors shall be appointed to fill such newly created Board
position as a member of a class of directors whose term does not
expire during the period that this Agreement is in effect or, if
such term expires during the period that this Agreement is in
effect, the Company shall, in the manner required by paragraph
10.1, undertake to facilitate the re-election or appointment of
such individual(s) to the Company's Board of Directors.
10.3 REPLACEMENT OF MR. RUTTENBERG. In the event that
prior to the termination of this Agreement, Mr. Ruttenberg, or
any other member of the Board nominated by the Purchasers and
Investors under this Agreement, shall cease to be a member of the
Company's Board of Directors as a result of his death,
disability, resignation (other than a resignation relating to a
termination of this Agreement), or failure to be re-nominated
pursuant to the last sentence of paragraph 10.1, the Purchasers
and Investors shall be entitled to propose an individual to fill
the vacancy on the Company's Board of Directors thereby created.
An individual proposed by the Purchasers and Investors and
reasonably acceptable to the Company's Board of Directors shall
be appointed to fill such vacancy.
10.4 APPROVAL OF MR. RUTTENBERG OR DESIGNEE. The Board of
Directors agrees that none of the current members of the Board of
Directors, the Company or any Affiliate of any of the foregoing,
will, directly or indirectly, alone or in concert with others,
seek the removal of any Director elected or appointed pursuant to
this paragraph 10 other than for cause. In addition, the Board
of Directors will, unless otherwise required in the exercise of
its fiduciary duties, recommend that shareholders of the Company
vote against any proposal to remove a Director elected or
appointed pursuant to this paragraph 10 other than for cause and
will solicit proxies in opposition to any such proposal.
The Company agrees that if it enters into any written
agreement with any shareholder of the Company providing for the
appointment or election of an individual proposed by such
shareholder to the Board of Directors, the Company will obtain
the written agreement of any such shareholder and such
shareholder's nominee to the Board of Directors that neither such
shareholder nor any of its Affiliates nor such shareholder's
nominee to the Board of Directors nor any of its Affiliates will
directly or indirectly, alone or in concert with others seek the
removal or oppose the re-election of a Director elected or
appointed pursuant to this paragraph 10 other than for cause.
10.5 COMMITTEES OF THE BOARD OF DIRECTORS. Mr. Ruttenberg
serves as a member of the Executive Compensation and Stock Option
Committee of the Board of Directors and shall not be removed from
the Executive Compensation and Stock Option Committee so long as
he is a member of the Board of Directors of the Company. In
addition, Mr. Ruttenberg serves as a member of the Directors
Committee and the Audit Committee of the Board of Directors and
shall not be removed from such committees so long as he is a
member of the Board of Directors of the Company. Mr. Ruttenberg
shall also be appointed to the Executive Committee of the Board
of Directors (or such other committee, if any, that serves the
functions typically served by an executive committee of the board
of directors of a corporation) and shall not be removed from such
committee so long as he is a member of the Board of Directors of
the Company. In the event that Mr. Ruttenberg or any Director
elected or appointed pursuant to this paragraph 10 shall cease to
be a member of the Board of Directors as a result of his death,
disability or resignation (other than a resignation relating to a
termination of this Agreement) the vacancy created thereby on
each committee of the Board of Directors of the Company shall be
filled by the Person who fills the vacancy on the Board of
Directors pursuant to paragraph 10.3.
10.6 PURCHASERS' AND INVESTORS' COMPLIANCE WITH AGREEMENT.
Notwithstanding the foregoing provisions of this paragraph 10,
the Purchasers and Investors shall be entitled to designate
nominees for election to the Board of Directors of the Company
only if the Purchasers, Investors and their Affiliates are acting
in material compliance with this Agreement and, as of the record
date for the shareholders' meeting at which such nominees will be
considered for election to the Board, the Purchasers, Investors
and their respective Affiliates Beneficially Own, in the
aggregate, Common Stock representing at least 10% of the Total
Voting Power (the "10% REQUIREMENT"); provided, however, that if
the Company issues additional shares of Common Stock and if,
after such issuance, the percentage of Total Voting Power with
respect to Common Stock Beneficially Owned by the Purchasers,
Investors and their respective Affiliates is decreased, then the
10% Requirement shall be decreased by an amount in proportion to
the decrease in the percentage of Total Voting Power of the
Purchasers, Investors and their respective Affiliates.
10.7 REMOVAL OF MR. RUTTENBERG OR DESIGNEE. If Mr.
Ruttenberg (or any other member of the Board nominated by
Purchasers and Investors pursuant to paragraph 10.2 or 10.3) is
removed from the Board of Directors of the Company, other than
pursuant to paragraph 10.3, or the shareholders fail to re-elect
Mr. Ruttenberg (or any other member of the Board nominated by
Purchasers and Investors pursuant to paragraph 10.2) to the Board
of Directors of the Company, this Agreement shall immediately
terminate and neither the Purchasers, Investors nor any of their
Affiliates nor the Company shall have any further obligation
pursuant to this Agreement, provided, however, that following any
such termination and until November 16, 2000, the provisions of
Section 7 shall survive and continue in full force and effect.
11. BREACH OF AGREEMENT
11.1 EQUITABLE REMEDIES FOR BREACH OF AGREEMENT. The
Purchasers and Investors, on the one hand, and the Company, on
the other hand, acknowledge and agree that irreparable damage
would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that
the Parties shall be entitled to equitable relief (including
injunction and specific performance) in any action instituted in
any court of the United States or any state thereof having
subject matter jurisdiction, as a remedy for any such breach or
to prevent any breach of this Agreement. Such remedies shall not
be deemed to be the exclusive remedies for a breach or
anticipatory breach of this Agreement, but shall be in addition
to all other remedies available at law or equity to the Parties
hereof. The Parties hereto irrevocably submit to the exclusive
jurisdiction of the courts of the Commonwealth of Pennsylvania
and the United States of America located in the Commonwealth of
Pennsylvania for any suits, actions or proceedings arising out of
or relating to this Agreement.
12. STOCK RESTRICTION LEGENDS
12.1 STOCK RESTRICTION LEGENDS. Upon issuance of the
Common Stock pursuant to this Agreement and the Rights Offering,
and so long as the Disposition of such Common Stock is subject to
restriction pursuant to this Agreement, the certificates
evidencing such Common Stock (and all securities issued in
exchange therefor or substitution thereof) shall bear the
following legend:
THE SALE, TRANSFER OR OTHER DISPOSITION OF THE SECURITIES
EVIDENCED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN
RESTRICTIONS CONTAINED IN AN AGREEMENT, DATED AS OF NOVEMBER
16, 1994 BETWEEN SPS TECHNOLOGIES, INC. AND THE PURCHASERS
AND INVESTORS SET FORTH THEREIN, A COPY OF WHICH IS ON FILE
AT THE PRINCIPAL EXECUTIVE OFFICES OF SPS TECHNOLOGIES, INC.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
ACCORDANCE WITH SUCH RESTRICTIONS ON SALE, TRANSFER OR OTHER
DISPOSITION; PROVIDED, HOWEVER, THAT SUCH SECURITIES MAY BE
PLEDGED TO AN INSTITUTIONAL LENDER AS SECURITY FOR MONEY
BORROWED.
In addition, upon issuance thereof and so long as such
Common Stock is subject to voting restrictions pursuant to this
Agreement, the certificates evidencing such Common Stock (and all
securities issued in exchange therefor or substitution thereof)
shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN VOTING RESTRICTIONS SET FORTH IN AN AGREEMENT DATED
AS OF NOVEMBER 16, 1994, BETWEEN SPS TECHNOLOGIES, INC. AND
THE PURCHASERS AND INVESTORS SET FORTH THEREIN, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF SPS
TECHNOLOGIES, INC.
12.2 EXCHANGE OF CERTIFICATE OF COMMON STOCK UPON
TERMINATION. Upon termination of this Agreement or upon any
Disposition of shares of Common Stock pursuant to the terms of
this Agreement under circumstances where such shares of Common
Stock are no longer subject to the restrictions contained in this
Agreement, the Company shall issue new certificate(s) without the
restrictive legends required by this paragraph 12 in exchange for
the legended certificate(s) representing such shares of Common
Stock.
13. TERMINATION
13.1 TERMINATION BY PURCHASERS AND INVESTORS PRIOR TO
CLOSING DATE/EFFECT. Purchasers and Investors acting
collectively may, upon notice to the Company, given at any time
on or before Closing, terminate collectively and only
collectively, this Agreement and the Registration Rights
Agreement, upon the occurrence of (i) a material adverse change
in the business, financial condition, liabilities or results of
operations of the Company and its subsidiaries occurring on or
after the date of this Agreement; (ii) a suspension of trading in
the Company's Common Stock on the New York Stock Exchange; or
(iii) a "stop order" issued by the SEC suspending the
effectiveness of the Registration Statement covering the
Underlying Shares, or a suspension of trading in securities
generally on the New York Stock Exchange; (iv) a material default
or breach by the Company with respect to the due and timely
performance of the Company's agreements contained herein or with
respect to the Company's representations and warranties and such
material default or breach has not been, or is not susceptible of
being with diligent efforts, cured prior to the Closing; (v)
entry of a judgment or order by any court or governmental
authority restraining, prohibiting or materially adversely
interfering with the Rights Offering, this Agreement, the
Registration Rights Agreement or Amendment No. 2.; or (vi) the
Rights Offering has not been completed by the Expiration Date (as
such may be extended in accordance with this Agreement). Upon
termination by Purchasers and Investors pursuant to the
provisions of this paragraph 13.1, this Agreement, the
Registration Rights Agreement and Amendment No. 2 to the Amended
Rights Agreement shall, except as otherwise provided in Section
13.4, be deemed terminated, null and void and of no further force
and effect, and there shall be no liability on the part of the
Parties or their respective officers or directors, except for
liability arising out of any breach or default hereunder.
13.2 TERMINATION BY THE COMPANY PRIOR TO CLOSING
DATE/EFFECT. The Company may, upon notice to Purchasers and
Investors, given at any time on or before Closing (A) terminate
collectively and only collectively, this Agreement, the
Registration Rights Agreement and Amendment No. 2 to the Amended
Rights Agreement, upon the occurrence of (i) a suspension of
trading in the Company's Common Stock on the New York Stock
Exchange; or (ii) a "stop order" issued by the SEC suspending the
effectiveness of the Registration Statement covering the
Underlying Shares, or a suspension of trading in securities
generally on the New York Stock Exchange; (iii) entry of a
judgment or order by any court or governmental authority
restraining, prohibiting or materially adversely interfering with
the Rights Offering; or (iv) a material default or breach by
Purchasers and Investors with respect to the due and timely
performance of the Purchaser's and Investor's agreements
contained herein or with respect to Purchaser's and Investor's
representations and warranties and such material default or
breach has not been, or is not susceptible of being with diligent
efforts, cured prior to the Closing, and (B) terminate the Rights
Offering upon the occurrence of any event set forth in clauses
(i), (ii) and (iii) of this paragraph 13.2, and upon such
termination, this Agreement, the Registration Rights Agreement,
Amendment No. 2 to the Amended Rights Agreement and the Rights
Offering (if terminated pursuant to clause (B) of this paragraph
13.2) shall, except as otherwise provided in the next sentence
and in Section 13.4, be deemed terminated, null and void and of
no further force and effect, and there shall be no liability on
the part of the Parties or their respective officers or
directors, except for liability arising out of any breach or
default hereunder. Further, the Company may, subject to
compliance with the Exchange Requirements and upon written notice
to Purchasers and Investors given at any time on or before
Closing, terminate the Rights Offering and this Agreement upon a
determination by the Company, in the exercise of its fiduciary
responsibilities, that the consummation of the Rights Offering is
not in the best interest of the Company, provided, however, that
in the event of any such termination (x) Amendment No. 2 to the
Amended Rights Agreement, (y) the provisions of Sections 7, 8 and
13.4 of this Agreement, and (z) the Registration Rights Agreement
shall survive and continue in full force and effect until such
time as they would have otherwise terminated pursuant to the
provisions of paragraph 13.3 below or, in the case of the
Registration Rights Agreement, pursuant to its terms.
13.3 TERMINATION OF AGREEMENT ON AND AFTER THE CLOSING
DATE. This Agreement shall terminate on and after the Closing
Date without further action by the Parties upon the earliest to
occur of (i) November 16, 2000, (ii) the date upon which the
Purchasers and their Affiliates no longer Beneficially Own shares
of Common Stock representing in excess of 10% of the Total Voting
Power, and (iii) an event contemplated by paragraph 10.7 hereof.
13.4 SURVIVAL OF CERTAIN PROVISIONS. The provisions of
Section 6 of this Agreement shall survive and continue in full
force and effect, notwithstanding any termination of this
Agreement. In the event of any termination of this Agreement,
other than a termination by the Company pursuant to Section
13.2(A)(iv), the Company shall nevertheless be obligated to pay
to Purchasers the Expense Reimbursement contemplated by Section
5.1(h) hereof.
14. MISCELLANEOUS PROVISIONS
14.1 ENTIRE AGREEMENT. This Agreement (together with the
Rights Offering, the Amended Rights Agreement and the
Registration Rights Agreement) contains the entire understandings
of the Parties with respect to the subject matter hereof and
supersedes all prior agreements, negotiations and understandings,
whether written or oral, between the Parties relating to the
subject matter hereof, and this Agreement may not be amended
except by a writing signed by the Parties. Except as otherwise
provided herein, this Agreement is not assignable by either of
the Parties. This Agreement shall be binding upon, and inure to
the benefit of, the respective successors and permitted assigns
of the Parties. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
14.2 NOTICE. Any notices and other communications required
to be given pursuant to this Agreement shall be in writing and
shall be given by delivery by hand, by mail (registered or
certified mail, postage prepaid, return receipt requested), by
telecopy or telex, as follows:
If to the Company:
SPS Technologies, Inc.
Jenkintown Plaza
101 Greenwood Avenue, Suite 470
Jenkintown, PA 19046
Attention: General Counsel
With a copy to:
Andrew C. Culbert, Esquire
Masterman, Culbert & Tully
One Lewis Wharf
Boston, MA 02110
If to any Purchaser or Investor:
The address of such Purchaser or Investor set
forth on Schedule I or Schedule II hereto.
With a copy to:
Paul T. Schnell, Esquire
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, NY 10022
or to such other addresses as either the Company or any Purchaser
or Investor shall designate to the other by notice in writing.
14.3 DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
"AGREEMENT" means this Standby Purchase Agreement among
Purchasers, Investors and the Company.
"AFFILIATE" shall have the meaning ascribed thereto in Rule
12b-2 of the 1934 Act.
"AMENDED RIGHTS AGREEMENT" has the meaning given in Recital
D.
"AMENDMENT NO. 2" has the meaning given in Recital D.
"BASIC SUBSCRIPTION PRIVILEGE" has the meaning given in
paragraph 1.2.
"BENEFICIALLY OWN" with respect to any securities and
"BENEFICIAL OWNERSHIP" shall mean having beneficial ownership as
determined pursuant to Rule 13d-3 under the 1934 Act.
"BUSINESS DAY" shall mean any day on which the New York
Stock Exchange is open for trading.
"CLOSING/CLOSING DATE" has the meaning given in paragraph
2.1.
"COMMON STOCK" has the meaning given in Recital A.
"COMPANY" means SPS Technologies, Inc., a Pennsylvania
corporation.
"DISPOSITION" has the meaning given in paragraph 9.1.
"EXCHANGE REQUIREMENTS" means the requirements of the New
York Stock Exchange for listed companies.
"EXPENSE REIMBURSEMENT" has the meaning given in paragraph
5.1(h).
"EXPIRATION DATE" has the meaning given in Recital B.
"GABELLI GROUP INCREASE" has the meaning given in paragraph
7.3.
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements
Act of 1976.
"INVESTORS" means the Persons listed on Schedule II hereto.
"NO ACTION LETTER" has the meaning given in paragraph
3.1(d).
"PARTY" means individually Purchasers, Investors or the
Company.
"PERCENTAGE LIMITATION" as used herein shall mean 20% of the
Total Voting Power as may be increased from time to time pursuant
to Section 7.3 hereof); provided, however, that if as a result of
any recapitalization, repurchase or other action by the Company,
the aggregate Total Voting Power Beneficially Owned by the
Purchasers, Investors and their respective Affiliates shall be
increased to more than 20%, then the Percentage Limitation shall
be increased to such increased percentage. In no event shall the
Purchasers and their Affiliates be deemed to have exceeded the
Percentage Limitation if (i) the Purchasers and their Affiliates
shall have exceeded the then applicable Percentage Limitation by
not more than 1% of the Total Voting Power, (ii) the Board of
Directors of the Company shall have determined that such action
was inadvertent, and (iii) the Purchasers, Investors and their
Affiliates shall have reduced their Beneficial Ownership to
within the then applicable Percentage Limitation within twenty
(20) days of receipt of notice from the Company indicating that
the Purchasers, Investors and their Affiliates have exceeded the
Percentage Limitation.
"PERSON" shall mean any individual, partnership, joint
venture, corporation, trust, incorporated organization,
government or department or agency of a government, or any other
entity that would be deemed to be a "person" under Section
13(d)(3) of the 1934 Act.
"PROSPECTUS" has the meaning given in paragraph 1.3.
"PURCHASERS means the Persons listed on Schedule I hereto.
"REGISTRATION RIGHTS AGREEMENT" has the meaning given in
Recital D.
"REGISTRATION STATEMENT" has the meaning given in paragraph
1.3.
"REMAINING SHARES" has the meaning given in Recital B.
"RESTRICTED SHARES" has the meaning given in paragraph 8.3.
"RIGHTS" has the meaning given in paragraph 1.2.
"RIGHTS OFFERING" has the meaning given in Recital C.
"SEC" means the Securities and Exchange Commission.
"SEC REPORTS" has the meaning given in paragraph 4.1(i).
"SUBCHAPTER F has the meaning given in paragraph 7.2.
"SUBSCRIPTION PRICE" has the meaning given in Recital A.
"SUBSCRIPTION RIGHTS" has the meaning given in Recital A.
"TOTAL VOTING POWER" at any time shall mean the total
combined voting power for the general election of directors of
the Company.
"TRANSACTIONS" has the meaning given in Recital E.
"UNDERLYING SHARES" has the meaning given in Recital A.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as
amended.
14.4 DISPOSITION OF PURCHASER OR AFFILIATE. For the
purposes of this Agreement, any Disposition of control of any
Purchaser, Investor or Affiliate thereof by the Persons
controlling such Purchaser, Investor or Affiliate on the date
hereof (other than such a disposition to another Purchaser,
investor or Affiliate thereof) shall be deemed to constitute the
Disposition of the Common Stock Beneficially Owned by such
Purchaser, Investor or Affiliate.
14.5 HSR ACT. Each of the Parties covenants and agrees
that within 14 days of a written request by any Purchaser or
Investor (i) it will make all filings required under the HSR Act
in connection with the Purchasers', Investors' and their
Affiliates' acquisition and/or Beneficial Ownership of Common
Stock having voting power up to the Percentage Limitation, and
(ii) it will otherwise use its best efforts and cooperate fully
with the other Parties to obtain any approvals that may be
required under the HSR Act in connection the Purchasers',
Investors' and their Affiliates' acquisition and/or Beneficial
Ownership of Common Stock having voting power up to the
Percentage Limitation. The Company agrees to reimburse
Purchasers, Investors and their Affiliates in the amount of any
filing fees actually paid with respect to filings required under
the HSR Act in connection with the Purchasers', Investors' and
their Affiliates' acquisition and/or Beneficial Ownership of
Common Stock having voting power up to the Percentage Limitation.
14.6 FURTHER UNDERTAKINGS. Subject to the terms and
conditions of this Agreement, each of the Parties hereby agrees
to use all reasonable efforts to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws, rules and regulations
to consummate and make effective the Transactions, including
using its best efforts to obtain all necessary waivers, consents,
and approvals. In case at any time after the execution of this
Agreement, further action is necessary or desirable to carry out
the purposes of this Agreement, the proper officers and directors
of each of the Parties shall take all such necessary action.
14.7 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of
Pennsylvania.
14.8 SEVERABILITY. If any provision of this Agreement is,
becomes or is deemed to be invalid, illegal or unenforceable in
any jurisdiction, then, to the maximum extent permissible, such
provision shall be deemed amended to conform to applicable law so
as to be valid and enforceable or, if such provision cannot be so
amended without materially altering the agreement of the parties,
such provision shall be stricken and the remainder of this
Agreement shall remain valid and continue in full force and
effect.
IN WITNESS WHEREOF, the Parties have hereunto caused this
Agreement to be duly executed as of the day and year first above
written.
SPS TECHNOLOGIES, INC.
By:/s/ Charles W. Grigg
___________________________
Charles W. Grigg, Its
Chairman and Chief Executive
Officer, hereunto duly
authorized
PURCHASERS:
TINICUM ENTERPRISES, INC.
By:/s/ James H. Kasschau
____________________________
Name: James H. Kasschau
Title: President
TINICUM INVESTORS
By:/s/ Eric M. Ruttenberg
____________________________
Name: Eric M. Ruttenberg
Title: General Partner
RUTCO INCORPORATED
By:/s/ James H. Kasschau
____________________________
Name: James H. Kasschau
Title: President
TINICUM FOREIGN INVESTMENTS
CORPORATION
By:/s/ James H. Kasschau
____________________________
Name: James H. Kasschau
Title: President
TINICUM ASSOCIATES, G.P.
By: Tinicum Associates, Inc.,
Managing Partner
By:/s/ James H. Kasschau
____________________________
Name: James H. Kasschau
Title: President
/s/ Putnam L. Crafts, Jr.
_______________________________
PUTNAM L. CRAFTS, JR.
/s/ James H. Kasschau
_______________________________
JAMES H. KASSCHAU
INVESTORS:
RIT CAPITAL PARTNERS plc
By:/s/ Clive Gibson
____________________________
Name: Clive Gibson
Title: Director
J. ROTHSCHILD CAPITAL MANAGEMENT
LIMITED
By:/s/ P. R. Griffiths
____________________________
Name: P. R. Griffiths
Title: Director
ST. JAMES'S PLACE CAPITAL plc
By:/s/ Clive Gibson
____________________________
Name: Clive Gibson
Title: Director
SCHEDULE 1
TO
STANDBY PURCHASE AGREEMENT
DATED AS OF NOVEMBER 16, 1994
NAMES AND ADDRESSES OF PURCHASERS
Tinicum Enterprises, Inc., a Delaware corporation
Tinicum Investors, a Delaware general partnership
Tinicum Associates, G.P., a Delaware general partnership
Tinicum Foreign Investments Corporation, a Delaware Corporation
RUTCO Incorporated, a Delaware corporation
James H. Kasschau
c/o Tinicum Enterprises, Inc.
900 Stewart Avenue
Garden City, NY 11530
Putnam L. Crafts, Jr.
130 Stevens Lane
Far Hills, NJ 07931
SCHEDULE 2
TO
STANDBY PURCHASE AGREEMENT
DATED AS OF NOVEMBER 16, 1994
NAMES AND ADDRESSES OF INVESTORS
RIT Capital Partners plc, a United Kingdom corporation
J Rothchild Capital Management Limited, a United Kingdom corporation
St. James's Place Capital plc, a United Kingdom corporation
c/o Tinicum Enterprises, Inc.
900 Stewart Avenue
Garden City, NY 11530
EXHIBIT 11
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), dated as of November 16, 1994, by and among
the parties listed on Schedule I hereto (each a
"Purchaser" and collectively the "Purchasers"), the
parties listed on Schedule II hereto (each an "Investor"
and collectively the "Investors") and SPS Technologies,
Inc., a Pennsylvania corporation (the "Company");
W I T N E S S E T H:
WHEREAS, the Company, the Purchasers and the
Investors have entered into a Standby Purchase Agreement,
dated as of November 16, 1994 (the "Standby Purchase
Agreement");
WHEREAS, in order to induce the Purchasers and
the Investors to enter into the Standby Purchase
Agreement the Company has agreed to provide the
registration rights set forth in this Agreement; and
WHEREAS, the Standby Purchase Agreement
requires that the Company, the Purchasers and the
Investors enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual
agreements and covenants contained herein and other good
and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto hereby
agree as follows:
1. Certain Definitions.
Capitalized terms that are not otherwise
defined in this Agreement shall have the meanings
ascribed to them in the Standby Purchase Agreement. As
used in this Agreement, the following capitalized terms
shall have the meanings set forth below:
Affiliate. "Affiliate" shall have the
meaning ascribed to that term in Rule 12b-2 of the
Rules and Regulations under the Exchange Act.
Common Stock. "Common Stock" shall mean
the common stock, $1.00 par value per share, of the
Company.
Exchange Act. "Exchange Act" shall mean
the Securities Exchange Act of 1934, as amended.
Holder. "Holder" shall mean any
Purchaser, any Investor, any Affiliate of any
Purchaser or Investor and any person to whom
Registrable Securities may be transferred by any
Purchaser, any Investor or any Affiliate of any
Purchaser or Investor.
Registrable Securities. "Registrable
Securities" shall mean any shares of Common Stock
Beneficially Owned by the Holders from time to time
(whether currently owned or hereafter acquired),
which in the aggregate represent a percentage of the
Total Voting Power not in excess of the Percentage
Limitation. The term "Registrable Securities" shall
also include any securities issued in exchange for
(including, without limitation, by way of stock
split or in connection with a combination of shares,
recapitalization, merger, consolidation or
otherwise) or as a dividend on Registrable
Securities.
Registration Expenses. "Registration
Expenses" shall mean all expenses incident to the
Company's performance of or compliance with the
registration requirements set forth in this
Agreement including, without limitation, the
following: (i) the fees, disbursements and expenses
of the Company's counsel and accountants in
connection with any registration of Registrable
Securities pursuant to this Agreement; (ii) the
reasonable fees, disbursements and expenses of one
counsel selected by the Holders in connection with
any registration of Registrable Securities pursuant
to this Agreement; (iii) all expenses in connection
with the preparation, printing and filing of the
registration statement, any preliminary prospectus
or final prospectus, any other offering document and
amendments and supplements thereto and the mailing
and delivering of copies thereof to any underwriters
and dealers; (iv) the cost of printing or producing
any agreement(s) among underwriters, underwriting
agreement(s), blue sky or legal investment
memoranda, selling agreements and any other
documents in connection with the offering, sale or
delivery of the Registrable Securities pursuant to
this Agreement; (v) all expenses in connection with
the qualification of the Registrable Securities for
offering and sale under state securities laws,
including the fees and disbursements of counsel for
the underwriter(s) in connection with such
qualification and in connection with any blue sky
and legal investment surveys; and (vi) any filing
fees incident to the registration of Registrable
Securities pursuant to this Agreement.
SEC. "SEC" shall mean the United States
Securities and Exchange Commission.
Securities Act. "Securities Act" shall
mean the Securities Act of 1933, as amended.
2. Securities Subject to this Agreement.
(a) The securities entitled to the benefits of
this Agreement are the Registrable Securities.
(b) As to any proposed offer or sale of
Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a registration statement
with respect to the sale of such securities shall have
become effective under the Securities Act and such
securities shall have been disposed of pursuant to such
registration statement or (ii) such securities shall have
been transferred or sold to any Person other than a
Holder.
(c) Subject to Section 2(b), the demand
registration rights and the piggyback registration rights
provided under Sections 3 and 4 of this Agreement shall
terminate upon the earlier to occur of (i) November 16,
2002 and (ii) such time as counsel for the Company shall
have delivered to the Purchasers and Investors an opinion
(which counsel and opinion shall be satisfactory to the
Purchasers and Investors) that all of the Registrable
Securities Beneficially Owned by the Purchasers, the
Investors and their respective Affiliates can be sold
without restriction or registration under the Securities
Act.
3. Registration Request.
(a) From and after November 16, 1997 and until
the termination of this Agreement, upon the written
request for the registration of Registrable Securities by
Holders who Beneficially Own 30% or more of the then
Registrable Securities, the Company shall use its best
efforts to cause the Registrable Securities specified in
such request to be registered (a "Demand Registration")
as expeditiously as possible under the Securities Act so
as to permit the sale thereof in the manner specified in
such request and in connection therewith prepare and
file, on such appropriate form as the Company in its
reasonable discretion shall determine, a registration
statement (a "Demand Registration Statement") under the
Securities Act to effect such Registration and seek to
have such Demand Registration Statement become effective
as promptly as practicable; provided, however, that each
such request shall (i) specify the number of shares of
Registrable Securities intended to be offered and sold,
(ii) express the present intention of the Holders to
offer or cause the offering of such Registrable
Securities for sale, (iii) describe the nature or method
of the proposed offer and sale thereof and (iv) contain
an undertaking by the Holders to provide all such
information and materials and to take all such action as
may be required in order to permit the Company to comply
with all applicable requirements of the SEC and to obtain
any desired acceleration of the effective date of such
Demand Registration Statement and; provided, further,
that no such request shall be for the registration of
Registrable Securities having a market value that is less
than $5,000,000 at the time of such request.
(b) Upon any Demand Registration Statement
becoming effective pursuant to this Section 3, the
Company shall use its best efforts to keep such Demand
Registration Statement current and effective for such
period of time as shall be necessary to effect the
distribution of Registrable Securities in the manner
specified by the Holders in the notice delivered to the
Company pursuant to Section 3(a); provided, however, that
such period shall not exceed nine months with respect to
a shelf registration or six months with respect to any
other registration.
(c) Notwithstanding the foregoing:
(i) the Company shall be entitled to
postpone for a reasonable period of time the filing
of any Demand Registration Statement otherwise
required to be prepared and filed by it (A) if the
Company would be required to disclose in such Demand
Registration Statement the existence of any fact
relating to a material business transaction not
otherwise required to be disclosed or (B) if a
registration at the time and on the terms requested
would materially adversely affect any proposed
equity financing by the Company that had been
contemplated by the Company prior to receipt of
notice delivered to the Company pursuant to Section
3(a); provided, however, that in no event may the
Company delay the filing of a Demand Registration
Statement for more than 90 days; and
(ii) the Company shall not be obligated to
file a Demand Registration Statement pursuant to
this Section 3 during the 180-day period following
the effective date of any other registration
statement filed by the Company in connection with an
underwritten primary or a secondary offering of its
securities.
(d) The obligation of the Company to effect
Demand Registrations in accordance with this Section 3
shall expire after two separate Demand Registration
Statements shall have become effective pursuant to this
Agreement. A Demand Registration Statement shall not be
deemed to have become effective for purposes of the
preceding sentence:
(i) if, after a Demand Registration
Statement has become effective such Demand
Registration Statement is interfered with by any
stop order, injunction or other order or requirement
of the SEC or other governmental authority for any
reason other than an act or omission of the Holders
requesting such registration; or
(ii) if the Company voluntarily takes
any action that would result in the Holders not
being able to sell the Registrable Securities
covered by such Demand Registration Statement during
the period specified in Section 3(b).
(e) If the Company files a Demand Registration
Statement pursuant to this Section 3 for an underwritten
offering, the Company shall be entitled to include in
such Demand Registration Statement, as a part of such
underwritten offering, additional shares of Common Stock
to be sold for the account of the Company or for any
other Person(s), on the same terms and conditions as the
shares of Common Stock being sold by the Holders;
provided, however, that if the managing underwriters(s)
of such offering advises in writing that in their opinion
the inclusion in such Demand Registration Statement of
all Common Stock proposed to be included by the Company
and such other Person(s) would result in a total number
of shares of Common Stock in excess of the number of
shares of Common Stock which can be sold in such offering
or would substantially affect the price that the Holders
could otherwise obtain in such offering, then the number
of shares of Common Stock to be included in such Demand
Registration Statement for the account of the Company or
such other Persons(s) shall be reduced to such number
that the managing underwriter(s) advise could be included
in such underwriting without interfering with the
successful marketing and pricing of the Registrable
Securities proposed to be sold by the Holders.
(f) the Company shall pay all Registration
Expenses incurred in connection with any Demand
Registration effected pursuant to this Section 3. The
Holders shall pay all underwriting discounts and
commissions attributable to the Registrable Securities
sold by the Holders pursuant to Demand Registration
Statement and the fees and expenses of any advisor(s)
other than the one counsel whose fees and expenses are
expressly included in the Registration Expenses.
4. Incidental Registration.
(a) If the Company at any time proposes to
register any of its securities ("Other Securities") under
the Securities Act (other than a registration on Form S-4
or S-8 or an S-3 registration statement which relates
solely to a dividend reinvestment plan or employee
purchase plan), whether or not for sale for its own
account, it will each such time give written notice to
the Holders of its intention to do so at least 30 days
prior to the anticipated filing date of the registration
statement relating to such registration. Such notice
shall offer the Holders the opportunity to include in
such registration statement (a "Piggyback Registration
Statement") such number of Registrable Securities as the
Holders may request. Upon the written request of the
Holders made within 10 days after the receipt of the
Company's notice (which request shall specify the number
of Registrable Securities intended to be disposed of and
the intended method of disposition thereof), the Company
will use its best efforts to effect, in connection with
the registration of the Other Securities, the
registration (a "Piggyback Registration") under the
Securities Act of all Registrable Securities which the
Company has been so requested to register by the Holders,
to the extent required to permit the disposition (in
accordance with such intended method or methods thereof
as aforesaid) of the Registrable Securities to be so
registered; provided, that if at any time after giving
such written notice of its intention to register any
Other Securities and prior to the effective date of the
Piggyback Registration Statement, the Company shall
determine for any reason not to register the Other
Securities, the Company may, at its election, give
written notice of such determination to the Holders and
thereupon the Company shall be relieved of its obligation
to register such Registrable Securities in connection
with the registration of such Other Securities (but not
from its obligation to pay Registration Expenses to the
extent incurred in connection therewith as provided in
Section 4(f) or its obligation to effect subsequent
Piggyback Registrations pursuant to this Section 4).
(b) If a Piggyback Registration is to be:
(i) an underwritten primary registration
on behalf of the Company, and the managing
underwriter(s) advise the Company in writing that in
their opinion the total number of securities
requested to be included in such registration would
exceed the number of securities which can be sold in
such offering or would substantially affect the
price that the Company could otherwise obtain in
such offering, the Company shall include in such
registration: (l) first, up to the full number of
securities the Company proposes to sell, (2) second,
up to the full number of securities that the Holders
propose to sell and (3) third, up to the full number
of securities that the managing underwriter(s)
advise can be so sold, allocated pro rata among the
holders of Other Securities (other than the
securities sold by the Company) (the "Other
Holders") who have also requested registration on
the basis of the number of securities requested to
be included therein by such Other Holders; or
(ii) an underwritten secondary
registration on behalf of a holder of Common Stock
demanding registration (an "Initiating Holder"), and
the managing underwriter(s) advise the Company in
writing that in their opinion the total number of
securities requested to be included in such
registration would exceed the number of securities
which can be sold in such offering or would
substantially affect the price that the Initiating
Holder could otherwise obtain in such offering, the
Company shall include in such registration: (l)
first, up to the full number of Other Securities the
Initiating Holder proposes to sell, (2) second, up
to the full number of securities that the Holders
propose to sell and (3) third, up to the full number
of securities that the managing underwriter(s)
advise can be so sold, allocated pro rata among the
Company and any Other Holders (other than the
Initiating Holder) who have also requested
registration on the basis of the number of
securities requested to be included therein by the
Company and such Other Holders.
(c) The Company shall not be required to
effect any Piggyback Registration under this Section 4
incidental to the registration of any of its securities
in connection with dividend reinvestment plans or stock
option or other employee benefit plans.
(d) No Piggyback Registration effected under
this Section 4 shall relieve the Company of its
obligation to effect Demand Registrations pursuant to
Section 3.
(e) The Company shall pay all Registration
Expenses in connection with any Piggyback Registration
effected pursuant to this Section 4. The Holders shall
pay all underwriting discounts or commissions
attributable to the Registrable Securities sold by the
Holders pursuant to Piggyback Registration Statement and
the fees and expenses of any advisor(s) other than the
one counsel whose fees and expenses are expressly
included in the Registration Expenses.
5. Registration Procedures.
(a) In connection with any offering of
Registrable Securities pursuant to this Agreement, the
Company (i) shall furnish to the Holders without charge
such number of copies of any prospectus (including any
preliminary prospectus) and prospectus supplement as they
may reasonably request in order to effect the offering
and sale of the Registrable Securities to be offered and
sold, but only while the Company shall be required under
the provisions hereof to cause the registration statement
to remain current and effective, and (ii) take such
action as shall be necessary to qualify the Registrable
Securities covered by such registration statement under
such blue sky or other state securities laws as the
Holders shall request; provided, however, that the
Company shall not be obligated to qualify as a foreign
corporation to do business under the laws of any
jurisdiction in which it shall not be then qualified or
to file any general consent to service of process.
(b) If requested, the Company shall enter into
an underwriting agreement with an investment banking firm
selected by the Company (and reasonably satisfactory to
the Holders) in connection with a Piggyback Registration,
or with a nationally recognized investment banking firm
selected by the Holders (and reasonably acceptable to the
Company) in connection with a Demand Registration. In
either case, such underwriting agreement shall contain
such representations, warranties, indemnities and
agreements as are then customarily included in
underwriting agreements with relating to secondary public
offerings.
(c) In connection with any offering of
Registrable Securities registered pursuant to this
Agreement, the Company shall (i) furnish the Holders, at
the Company's expense, with unlegended certificates
representing ownership of the Registrable Securities
which are sold in such offering in such denominations as
the Holders shall request and (ii) instruct the transfer
agent and registrar of the Common Stock to release any
stop transfer orders with respect to the Registrable
Securities so sold.
(d) In connection with the Company's
obligations pursuant to Sections 3 and 4 hereof, the
Company will:
(i) before filing a registration
statement or prospectus or any amendments or
supplements thereto, furnish to counsel for the
Holders, copies of all such documents proposed to be
filed, which documents will be subject to such
counsel's review and comments;
(ii) cause the prospectus to be
supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule
424 under the Securities Act;
(iii) notify each Holder of Registrable
Shares covered by the registration statement
promptly: (A) when the prospectus or any prospectus
supplement or post-effective amendment has been
filed, and, with respect to the registration
statement or any post-effective amendment, when the
same has become effective; (B) of any request by the
SEC for any amendments or supplements to the
registration statement or the prospectus or for
additional information; (C) of the issuance by the
SEC of any stop order suspending the effectiveness
of the registration statement or the initiation of
any proceedings for that purpose; (D) if, at any
time prior to the closing contemplated by an
underwriting agreement entered into in connection
with such registration statement, that the
representations and warranties of the Company
contemplated by Section 5(b) above cease to be true
and correct; (E) of the receipt by the Company 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
(F) of the happening of any event which makes any
statement made in the registration statement, the
prospectus or any document incorporated therein by
reference untrue or which requires the making of any
changes in the registration statement, the
prospectus or any document incorporated therein by
reference in order to make the statements therein
not misleading;
(iv) make every reasonable effort to
obtain the withdrawal of any order suspending the
effectiveness of the registration statement;
(v) furnish to each Holder of Registrable
Securities covered by the registration statement,
without any additional charge, one manually signed
copy of the Registration Statement and any post-
effective amendment thereto, including financial
statements and schedules, all documents incorporated
therein by reference and all exhibits (including
those incorporated by reference);
(vi) upon the occurrence of any event
contemplated by paragraph (d)(iii)(F) above, prepare
a supplement or post-effective amendment to the
registration statement, the related prospectus or
any document incorporated therein by reference or
file any other required document so that, as
thereafter delivered to the purchasers of the
Registrable Securities, the prospectus will not
contain an untrue statement of a material fact or
omit to state any material fact necessary to make
the statements therein not misleading;
(vii) cause all Registrable Securities
covered by the registration statement to be listed
on each securities exchange on which similar
securities issued by the Company are then listed if
requested by the Holders thereof or the managing
underwriter(s), if any;
(viii)(A) obtain opinions of counsel to
the Company and updates thereof addressed to the
Holders and the underwriter(s), if any, covering the
matters customarily covered in opinions requested in
underwritten offerings and such other matters as may
be reasonably requested by the Holder and the
underwriter(s), if any; and (B) obtain "cold
comfort" letters and updates thereof from the
Company's independent certified public accountants
addressed to the Holders and the underwriter(s), if
any, such letters to be in customary form and
covering matters of the type customarily covered in
"cold comfort" letters by accountants in connection
with underwritten offerings. The above shall be
done at each closing under such underwriting or
similar agreement or as and to the extent required
thereunder;
(ix) make available for inspection, in
connection with the preparation of a registration
statement pursuant to this Agreement, by a
representative of the Holders of Registrable
Securities covered by the registration statement,
and any attorney or accountant retained by such
Holders, all financial and other records and
pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors
and employees to supply all information reasonably
requested by any such representative, attorney or
accountant; provided that any records, information
or documents that are designated by the Company in
writing as confidential shall be kept confidential
by such persons unless disclosure of such records,
information or documents is required by court or
administrative order; and
(x) otherwise use its best efforts to
comply with all applicable rules and regulations of
the SEC.
6. Indemnification and Contribution.
(a) In the case of each offering effected
pursuant to this Agreement, the Company agrees to
indemnify and hold the Holders, the underwriter(s), and
each person who controls any of the foregoing within the
meaning of Section 15 of the Securities Act, harmless
against any and all losses, claims, damages or
liabilities (collectively, "Losses") to which they or any
of them may become subject under the Securities Act or
any other statute or common law or otherwise, and to
reimburse them for any reasonable legal or other expenses
incurred by them in connection with investigating any
claims and defending any actions, insofar as any such
Losses shall arise out of or shall be based upon (i) any
untrue statement or alleged untrue statement of a
material fact contained in the registration statement
relating to the sale of such Registrable Securities, or
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 (ii)
any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus (as
amended or supplemented if the Company shall have filed
with the SEC any amendment thereof or supplement
thereof), if used prior to the effective date of such
registration statement, or contained in the prospectus
(as amended or supplemented if the Company shall have
filed with the SEC any amendment thereof or supplement
thereof, including the information deemed part of such
registration statement pursuant to Rule 430A), if used
within the period during which the Company shall be
required to keep the registration statement to which such
prospectus relates current and effective pursuant to the
terms of this Agreement, or the omission or alleged
omission to state therein (if so used) a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were made,
not misleading; provided, however, that the
indemnification agreement contained in this Section 6(a)
shall not apply to Losses which arise out of or are based
upon any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if
such statement or omission shall have been made in
reliance upon and in conformity with information
furnished in writing to the Company by the Holders
specifically for use in connection with the preparation
of the registration statement or any preliminary
prospectus or prospectus contained in the registration
statement or any such amendment thereof or supplement
thereto.
(b) In the case of each offering effected
pursuant to this Agreement, the Holders and
underwriter(s) shall agree, severally, in the same manner
and to the same extent as set forth in Section 6(a) to
indemnify and hold harmless the Company and each person,
if any, who controls the Company within the meaning of
Section 15 of the Securities Act, its directors and those
officers of the Company who shall have signed any such
registration statement, for Losses arising out of any
statement in or omission from such registration statement
or any preliminary prospectus (as amended or as
supplemented, if amended or supplemented as aforesaid) or
prospectus contained in such registration statement (as
amended or as supplemented, if amended or supplemented as
aforesaid), if such statement or omission shall have been
made in reliance upon and in conformity with information
furnished in writing to the Company by the Holders or the
underwriter(s), as the case may be, specifically for use
in connection with the preparation of such registration
statement or any preliminary prospectus or prospectus
contained in such registration statement or any such
amendment thereof or supplement thereto; provided,
however, that with respect to any statement or omission
made in any preliminary prospectus, the indemnity
agreement contained in this Section 6(b) shall not apply
with respect to the Holders to the extent that any such
Losses arise out of or are based upon the fact that a
current copy of the prospectus was not sent or given to a
person asserting such Losses at or prior to the written
confirmation of the sale of the Registrable Securities if
such current copy of the prospectus would have cured the
defect giving rise to such Losses.
(c) Each party indemnified under Sections 6(a)
or 6(b) shall, promptly after receipt of notice of any
claim against, or the commencement of any action against,
such indemnified party in respect of which indemnity may
be sought, notify the indemnifying party in writing of
the commencement thereof. The omission of any
indemnified party to so notify an indemnifying party of
any such action shall not relieve the indemnifying party
from any liability in respect of such action which it may
have to such indemnified party on account of the
indemnity agreement in Section 6(a) or 6(b), unless and
to the extent the indemnifying party was prejudiced by
such omission, and in no event shall relieve the
indemnifying party from any other liability which it may
have to such indemnified party. In case any such action
shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement
thereof, the indemnifying party shall 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
satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the
indemnifying party shall not be liable to such
indemnified party under Sections 6(a) or 6(b) for any
legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof
other than reasonable costs of investigations; provided,
however, that the indemnifying party shall not be
entitled to assume the defense of the indemnified party
if in the reasonable judgment of such indemnified party
based on advice of counsel, a conflict of interest may
exist between such indemnified party and any other
indemnified parties with respect to such claim.
(d) The Company, the Holders and the
underwriter(s) shall also agree that if and to the extent
that the indemnification provided under Sections 6(a) or
6(b) shall be held unenforceable, the Company, the
Holders and the underwriter(s) shall contribute to the
aggregate Losses arising in connection with any offering
effected pursuant to this Agreement in such proportion as
is appropriate to reflect the relative benefits to and
the relative fault of the Company, the Holders and the
underwriter(s) as well as any other relevant equitable
considerations. The relative fault of a party 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 such party and
each party's relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission. The parties agree that it would
not be just and equitable if contribution pursuant to
this Section 6(d) were determined by pro rata allocation
or by any other method of allocation which does not take
into account the equitable considerations referred to
above. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11 of the Securities Act)
shall be entitled to contribution from any person who was
not also guilty of such fraudulent misrepresentation.
(e) No Holder shall be liable for
indemnification or contribution under this Section 6 in
an aggregate amount that exceeds the net proceeds
received by such Holder and its Affiliates in connection
with an offering effected pursuant to this Agreement.
7. Miscellaneous.
(a) Restrictions on Public Sale by the Company.
The Company covenants and agrees that (i) it shall not
effect any public sale or distribution of any securities
similar to those being registered pursuant to this
agreement, or any securities convertible into or
exchangeable or exercisable for such securities (except
pursuant to a registration statement on Form S-4 or S-8)
during the thirty (30) days prior to, and during the one-
hundred eighty (180) day period beginning on, the
effective date of any registration statement relating to
the Registrable Securities or the commencement of a
public distribution of Registrable Securities pursuant to
such registration statement, and (ii) that any agreement
entered into after the date hereof pursuant to which the
Company agrees to issue any privately placed securities
shall contain a provision under which holders of such
securities agree not to effect any public sale or
distribution of any such securities during the period
described in clause (i) above (except as part of the
registration referred to in such clause (i), if
permitted), including any sales pursuant to Rule 144
under the Securities Act.
(b) Registration Rights. The Company covenants
and agrees that, prior to November 16, 2002, it will not
grant registration rights to any other person unless the
Holders shall be entitled to have included in any
registration effected pursuant to Section 4 of this
Agreement all Registrable Securities requested by them to
be so included pro rata with the inclusion of any
securities requested to be registered by such person
pursuant to incidental registration rights so granted.
(c) Adjustments Affecting Registrable
Securities. The Company will not take any action, or
permit any change to occur, with respect to the
Registrable Securities which would adversely affect the
ability of the Holders to include Registrable Securities
in a registration effected pursuant to this Agreement.
(d) Governing Law and Severability. This
Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania without giving effect to
conflicts of law principles thereof. If any provision of
this Agreement shall be declared invalid or unenforceable
by a court of competent jurisdiction, the remaining
provisions hereof shall remain valid and shall continue
in effect.
(e) Binding Effect on Successor. This
Agreement shall be binding upon and inure to the benefit
of the Company, the Purchasers, the Investors and their
respective successors and assigns (including successors
resulting from any merger, consolidation, reorganization
or transfer of assets).
(f) Specific Performance. The Purchasers, the
Investors and the Company acknowledge and agree that
irreparable injury would occur in the event that any of
the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise
breached and that such injury would not be compensable in
damages. The parties agree that they shall be entitled
to specific enforcement of, and injunctive relief to
prevent, any violation of the terms hereof, and no party
will take action, directly or indirectly, in opposition
to another party seeking such relief on the grounds that
any other remedy or relief is available at law or in
equity. The parties further agree that no bond shall be
required as a condition to the granting of such relief.
(g) No Waiver. Any waiver by any party of a
breach of any provision of this Agreement shall not
operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other
provision of this Agreement. The failure of a party to
insist upon strict adherence to any term of this
Agreement on any one or more occasions shall not be
considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term
or any other term of this Agreement.
(h) Entire Agreement; Amendments. This
Agreement, together with the Standby Purchase Agreement,
contains the entire understanding of the parties with
respect to the subject matter hereof and thereof. There
are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings
other than those expressly set forth herein or therein.
This Agreement may be amended only by a written
instrument duly executed by the parties or their
respective successors or assigns.
(i) Headings. The section headings contained
in the Agreement are for reference purposes only and
shall not effect in any way the meaning or interpretation
of this Agreement.
(j) Notices. All notices, requests, claims,
demands and other communications hereunder shall be in
writing and shall be given in the manner specified in the
Standby Purchase Agreement.
(k) Further Assurances. From time to time on
and after the date hereof, the Company, the Purchasers
and the Investors shall deliver or cause to be delivered
such further documents and instruments and shall do and
cause to be done such further acts as shall be reasonably
required to carry out the provisions and purposes of this
Agreement.
(l) Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall
be deemed an original and all of which together shall be
deemed one and the same Agreement.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
SPS TECHNOLOGIES, INC.
By:/s/ Harry J. Wilkinson
_______________________________
Name: Harry J. Wilkinson
Title: President & COO
PURCHASERS:
TINICUM ENTERPRISES, INC.
By:/s/ James H. Kasschau
_________________________________
Name: James H. Kasschau
Title: President
TINICUM INVESTORS
By:/s/ Eric M. Ruttenberg
___________________________________
Name: Eric M. Ruttenberg
Title: General Partner
RUTCO INCORPORATED
By:/s/ James H. Kasschau
____________________________________
Name: James H. Kasschau
Title: President
TINICUM FOREIGN INVESTMENTS CORPORATION
By: /s/ James H. Kasschau
____________________________________
Name: James H. Kasschau
Title: President
TINICUM ASSOCIATES, G.P.
By: Tinicum Associates, Inc.,
Managing Partner
By: /s/ James H. Kasschau
____________________________________
Name: James H. Kasschau
Title: President
/s/ Putnam L. Crafts, Jr.
_______________________________________
PUTNAM L. CRAFTS, JR.
/s/ James H. Kasschau
_______________________________________
JAMES H. KASSCHAU
INVESTORS:
RIT CAPITAL PARTNERS plc
By:/s/ Clive Gibson
____________________________________
Name: Clive Gibson
Title: Director
J. ROTHSCHILD CAPITAL MANAGEMENT LIMITED
By:/s/ P. R. Griffiths
_____________________________________
Name: P. R. Griffiths
Title: Director
ST. JAMES'S PLACE CAPITAL plc
By:/s/ Clive Gibson
_____________________________________
Name: Clive Gibson
Title: Director
SCHEDULE I
TO
REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 16, 1994
Names and Addresses of Purchasers
Tinicum Enterprises, Inc., a Delaware corporation
Tinicum Investors, a Delaware general partnership
Tinicum Associates, G.P., a Delaware general partnership
Tinicum Foreign Investments Corporation, a Delaware
corporation
RUTCO Incorporated, a Delaware corporation
James H. Kasschau
c/o Tinicum Enterprises, Inc.
900 Stewart Avenue
Garden City, NY 11530
Putnam L. Crafts, Jr.
130 Stevens Lane
Far Hills, NJ 07931
SCHEDULE II
TO
REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 16, 1994
Names and Addresses of Investors
RIT Capital Partners, plc, a United Kingdom corporation
J. Rothschild Capital Management Limited, a United
Kingdom corporation
St. James's Place Capital plc, a United Kingdom corporation
c/o Tinicum Enterprises, Inc.
900 Stewart Avenue
Garden City, NY 11530
EXHIBIT 12
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
This Amendment No. 2 ("Amendment No. 2"), dated as of
November 16, 1994, to the Rights Agreement, dated as of November
11, 1988, between SPS Technologies, Inc., a Pennsylvania
corporation (the "Company") and Mellon Bank (East) N.A., a
national banking association (the "Rights Agent"), as amended by
Amendment No. 1 thereto dated as of January 22, 1991
(collectively, the "Rights Agreement").
Capitalized terms not defined in this Amendment No. 2
shall have the meaning given to them in the Rights Agreement.
The parties hereto agree to amend the Rights Agreement
as follows:
1. Section 1(j) shall be amended and restated as
follows:
(j) "Exempted Person" shall mean (i) the group known
as "GAMCO Investors/Gabelli Funds Inc.", as identified in the
most recent Schedule 13D filed by such group prior to January 22,
1991, unless and until such group or any Person in such group,
together with all Affiliates and Associates of such group or any
Person in such group, becomes the Beneficial Owner of 30% or more
of the Common Shares then outstanding, and (ii) the group known
as "Tinicum Enterprises/Tinicum Investors", as identified in
Amendment No. 6 to the Schedule 13D filed by such group prior to
the date hereof, and as such group may be reconstituted from time
to time by Affiliates and Associates of Persons in such group,
unless and until such group or any Person in such group, together
with all Affiliates and Associates of such group or any Person in
such group, becomes the Beneficial Owner of more than 20% of the
Common Shares then outstanding. The purchaser, assignee or
transferee of the Common Stock of an Exempted Person shall not be
an Exempted Person.
2. Except as otherwise amended herein, the Company
and the Rights Agent do hereby ratify and confirm the remaining
terms and provisions of the Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to be duly executed as of the day and year first
above written within.
SPS Technologies, Inc.
By /s/ Harry J. Wilkinson
_____________________________
Name: Harry J. Wilkinson
Title: President & COO
Mellon Bank (East) N.A.
By /s/ Jack A. Livingston
______________________________
Name: Jack A. Livingston
Title: Senior Vice President
