Delaware | 3568 | 61-1478870 | ||
(State or Other Jurisdiction of
Incorporation or Organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification Number) |
Craig W. Adas, Esq.
Weil, Gotshal & Manges LLP 201 Redwood Shores Parkway Redwood Shores, California 94065 (650) 802-3000 |
Valerie Ford Jacob, Esq.
Stuart Gelfond, Esq. Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, New York 10004-1980 (212) 859-8000 |
Proposed Maximum | Proposed Maximum | |||||||||||
Title of Each Class of | Amount to be | Offering Price Per | Aggregate | Amount of | ||||||||
Securities to be Registered | Registered(a) | Share(b) | Offering Price(b) | Registration Fee(c) | ||||||||
Common stock, par value $0.001 per share
|
11,500,000 shares | $16.00 | $184,000,000 | $19,688 | ||||||||
(a) | Includes shares of common stock which may be purchased by the underwriters to cover over-allotments, if any. |
(b) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(o) promulgated under the Securities Act of 1933. |
(c) | $18,458 of which was previously paid. |
The information
in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is
not soliciting an offer to buy these securities in any state
where the offer or sale is not
permitted.
|
Per Share | Total | |||||||
Public offering price
|
$ | $ | ||||||
Underwriting discount
|
$ | $ | ||||||
Proceeds, before expenses, to Altra Holdings, Inc.
|
$ | $ | ||||||
Proceeds, before expenses, to the selling stockholders
|
$ | $ |
Jefferies & Company |
Robert W. Baird & Co. |
Wachovia Securities |
1
2
3
4
5
Table of Contents
Table of Contents
Leverage Our Sales and Distribution Network.
We intend to
continue to leverage our relationships with our distributors to
gain shelf space, further integrate our recently acquired brands
with our core brands and sell new products. We seek to
capitalize on customer brand preference for our products to
generate pull-through aftermarket demand from our distribution
channel.
Focus our Strategic Marketing on New Growth
Opportunities.
Through a systematic process that leverages
our core brands and products, we seek to identify attractive
markets and product niches, collect customer and market data,
identify market drivers, tailor product and service solutions to
specific market and customer requirements and deploy resources
to gain market share and drive future sales growth.
Accelerate New Product and Technology Development.
We are
highly focused on developing new products across our business in
response to customer needs in various markets. In total, we
expect new products developed by us during the past three years
to generate approximately $40 million in revenues in 2006.
Capitalize on Growth and Sourcing Opportunities in the
Asia-Pacific Market.
We intend to leverage our established
sales offices in China, Taiwan and Singapore, as well as add
representation in Japan and South Korea. We also intend to
expand our manufacturing presence in Asia beyond our current
plant in Shenzhen, China. During 2005, we sourced approximately
12% of our purchases from low-cost countries, resulting in
average cost reductions of approximately 40% for these products.
We intend to utilize our sourcing office in Shanghai to
significantly increase our current level of low-cost country
sourced purchases. We may also consider opportunities to
outsource some of our production from North American and Western
European locations to Asia.
Continue to Improve Operational and Manufacturing
Efficiencies through ABS.
We believe we can continue to
improve profitability through cost control, overhead
rationalization, global process optimization, continued
implementation of lean manufacturing techniques and strategic
pricing initiatives. We have implemented these principles with
our recent acquisitions of Hay Hall Holdings Limited, or Hay
Hall, and Bear Linear LLC, or Bear Linear, and intend to apply
such principles to future acquisitions.
Pursue Strategic Acquisitions that Complement our Strong
Platform.
Management believes that there may be a number of
attractive potential acquisition candidates in the future, in
part due to the fragmented nature of the industry. We plan to
continue our disciplined pursuit of strategic acquisitions to
accelerate our growth, enhance our industry leadership and
create value.
if we are unable to address technological advances, or introduce
new or improved products to meet customer needs, we may be
unable to maintain or enhance our competitive positions with
customers and distributors;
if we are unable to continue to effectively implement our ABS
operating plan, outsource parts and manufacturing from low cost
countries, or introduce new cost effective manufacturing
techniques, we may not continue to achieve cost savings;
Table of Contents
our ability to improve or sustain operating margins as a result
of cost-savings may be further impacted by cost increases in raw
materials to the extent we are unable to offset any such cost
increases with price increases on a timely basis;
in the past, we have grown through acquisitions and we may be
unable to identify attractive acquisition candidates,
successfully integrate acquired operations or realize the
intended benefits of our acquisitions; and
as we expand our international operations we may be further
subjected to risks not present in the U.S. markets such as
foreign and U.S. government regulations and restrictions,
tariffs and other trade barriers, foreign exchange risks and
other risks related to political, economic and social
instability.
Table of Contents
Table of Contents
6
Common Stock offered by Altra Holdings, Inc
3,333,334 shares
Common Stock to be offered by the selling stockholders
6,666,666 shares. Of these shares, 280,527 shares will
be sold by certain of our directors and executive officers,
including our Chief Executive Officer and our Chief Financial
Officer. See Principal and Selling Stockholders.
Shares outstanding after the offering
23,087,591 shares
Use of proceeds
We estimate our net proceeds from this offering without exercise
of the over-allotment option will be approximately
$41.5 million. We intend to use these proceeds to repay a
portion of our outstanding indebtedness and for general working
capital. We will not receive any of the proceeds from the sale
of shares by the selling stockholders.
Risk factors
See Risk Factors and other information included in
this prospectus for a discussion of factors you should carefully
consider before deciding to invest in shares of our common stock.
Dividend policy
We do not currently intend to pay cash dividends on shares of
our common stock.
NASDAQ symbol
AIMC
Table of Contents
7
8
9
Pro Forma(1)
Altra Holdings, Inc.
Predecessor
Historical
Combined
Twelve
Twelve
Nine Months
Twelve
Nine Months
Months
Months
Period from
Eleven
Twelve
Ended
Months
Ended
Ended
Ended
December 1, 2004
Months
Months
September 29,
Ended
September 29,
December 31,
December 31,
Through
Ended
Ended
2006
December 31,
2006
2005
2004(2)
December 31,
November 30,
December 31,
(Unaudited)
2005
(Unaudited)
(Unaudited)
(Unaudited)
2004
2004
2003
(in thousands)
$
347,511
$
363,465
$
354,457
$
426,446
$
303,662
$
28,625
$
275,037
$
266,863
252,959
271,952
255,771
307,106
233,100
23,847
209,253
207,941
94,552
91,513
98,686
119,340
70,562
4,778
65,784
58,922
57,364
61,480
59,052
89,477
54,294
8,973
45,321
52,968
3,807
4,683
4,325
378
3,947
(3,838
)
(1,300
)
(1,300
)
947
947
11,085
37,219
25,350
39,634
29,863
12,296
(4,573
)
16,869
(5,131
)
$
10,693
$
2,504
$
11,649
$
1,042
$
1,002
$
(5,893
)
$
6,895
$
(9,306
)
$
46,883
$
36,900
$
49,495
$
44,470
$
19,141
$
(3,654
)
$
22,795
$
3,057
10,311
11,533
10,508
14,395
6,993
919
6,074
8,653
6,133
6,199
6,133
7,437
3,778
289
3,489
5,294
Altra Holdings, Inc.
September 29,
December 31,
2006
(Unaudited)
2005
2004
(in thousands)
$
5,760
$
10,060
$
4,729
80,336
52,863
57,571
374,084
297,691
299,387
229,327
173,760
173,851
72,676
71,622
76,665
(1)
The term Pro forma refers to our operations after
giving effect to the Other Transactions and the Hay Hall
Acquisition after conversion into U.S. dollars at the
assumed exchange rates described herein (each as described under
Our Formation, Recent Acquisitions and Other
Transactions),
Table of Contents
as if they had occurred as of the applicable date for balance
sheet purposes and the first day of the applicable period for
results of operations purposes.
(2)
The combined results were prepared by adding the results of
Altra from December 1 to December 31, 2004 to those
from our Predecessor for the 11 month period ending
November 31, 2004. This presentation is not in accordance
with GAAP. The primary differences between our Predecessor and
the successor entity are the inclusion of Kilian in the
successor and the successors book basis has been stepped
up to fair value such that the successor has additional
depreciation, amortization and financing costs. The results of
Kilian are included in Altra for the period from
December 1, 2004 through December 31, 2004. Management
believes that this combined basis presentation provides useful
information for our investors in the comparison to Predecessor
trends and operating results. The combined results are not
necessarily indicative of what our results of operations may
have been if the PTH Acquisition and Kilian Transactions had
been consummated earlier, nor should they be construed as being
a representation of our future results of operations.
(3)
EBITDA is defined as earnings before interest, income taxes,
depreciation and amortization. EBITDA is used by us as a
performance measure. Management believes that EBITDA provides
relevant information for our investors because it is useful for
trending, analyzing and benchmarking the performance and value
of our business. Management also believes that EBITDA is useful
in assessing current performance compared with the historical
performance of our Predecessor because significant line items
within our income statements such as depreciation, amortization
and interest expense were significantly impacted by the PTH
Acquisition. Internally, EBITDA is used as a financial measure
to assess the operating performance and is an important measure
in our incentive compensation plans. EBITDA has important
limitations, and should not be considered in isolation or as a
substitute for analysis of our results as reported under GAAP.
For example, EBITDA does not reflect:
cash expenditures, or future requirements, for capital
expenditures or contractual commitments;
changes in, or cash requirements for, working capital needs;
the significant interest expense, or the cash requirements
necessary to service interest or principal payments, on debts;
tax distributions that would represent a reduction in cash
available to us; and
any cash requirements for assets being depreciated and amortized
that may have to be replaced in the future.
Historical
Pro Forma
Altra Holdings, Inc.
Predecessor
Combined
Nine
Twelve
Nine
Twelve
Twelve
Period from
Eleven
Twelve
Months
Months
Months
Months
Months
December 1,
Months
Months
Ended
Ended
Ended
Ended
Ended
2004 through
Ended
Ended
September 29,
December 31,
September 29,
December 31,
December 31,
December 31,
November 30,
December 31,
2006
2005
2006
2005
2004
2004
2004
2003
$
10,693
$
2,504
$
11,649
$
1,042
$
1,002
$
(5,893
)
$
6,895
$
(9,306
)
6,497
3,349
7,135
2,497
5,240
(292
)
5,532
(1,658
)
19,382
19,514
20,203
26,536
5,906
1,612
4,294
5,368
10,311
11,533
10,508
14,395
6,993
919
6,074
8,653
46,883
36,900
49,495
44,470
19,141
(3,654
)
22,795
3,057
Table of Contents
(4)
Includes expenses relating to non-cash inventory
step-up
costs,
management fees and transaction expenses associated with
acquisitions which, if subtracted out, would result in a higher
EBITDA. Inventory
step-up
costs accounted
for $2.3 million, $1.7 million and $1.7 million,
respectively, for the nine months ended September 29, 2006,
the twelve months ended December 31, 2005 and the Combined
Twelve Months Ended December 31, 2004. Management fees
consisted of $0.8 million, $1.0 million and
$0.1 million, respectively, for the nine months ended
September 29, 2006, the twelve months ended
December 31, 2005 and the Combined Twelve Months Ended
December 31, 2004. Transaction fees and expenses associated
with acquisitions accounted for $1.0 million and
$4.4 million, respectively, for the nine months ended
September 29, 2006 and the Combined Twelve Months Ended
December 31, 2004.
(5)
Working capital consists of total current assets less total
current liabilities.
Table of Contents
We operate in the highly competitive mechanical power transmission industry and if we are not able to compete successfully our business may be significantly harmed. |
Changes in general economic conditions or the cyclical nature of our markets could harm our operations and financial performance. |
We rely on independent distributors and the loss of these distributors could adversely affect our business. |
10
We must continue to invest in new technologies and manufacturing techniques; however, our ability to develop or adapt to changing technology and manufacturing techniques is uncertain and our failure to do so could place us at a competitive disadvantage. |
| product quality and availability; | |
| price competitiveness; | |
| technical expertise and development capability; | |
| reliability and timeliness of delivery; | |
| product design capability; | |
| manufacturing expertise; and | |
| sales support and customer service. |
Our operations are subject to international risks that could affect our operating results. |
| fluctuations in currency exchange rates; | |
| exchange rate controls; | |
| tariffs or other trade protection measures and import or export licensing requirements; |
11
| potentially negative consequences from changes in tax laws; | |
| interest rates; | |
| unexpected changes in regulatory requirements; | |
| changes in foreign intellectual property law; | |
| differing labor regulations; | |
| requirements relating to withholding taxes on remittances and other payments by subsidiaries; | |
| restrictions on our ability to own or operate subsidiaries, make investments or acquire new businesses in various jurisdictions; | |
| potential political instability and the actions of foreign governments; and | |
| restrictions on our ability to repatriate dividends from our subsidiaries. |
Our operations depend on production facilities throughout the world, many of which are located outside the United States and are subject to increased risks of disrupted production causing delays in shipments and loss of customers and revenue. |
Material weaknesses in our internal controls over financial reporting have been identified which could result in a decrease in the value of our common stock. |
12
If we are unable to complete our assessment as to the adequacy of our internal controls over financial reporting as of December 31, 2007 as required by Section 404 of the Sarbanes-Oxley Act of 2002, or if material weaknesses are identified and reported, investors could lose confidence in the reliability of our financial statements, which could result in a decrease in the value of your investment. |
We rely on estimated forecasts of our OEM customers needs, and inaccuracies in such forecasts could materially adversely affect our business. |
The materials used to produce our products are subject to price fluctuations that could increase costs of production and adversely affect our profitability. |
13
We face potential product liability claims relating to products we manufacture or distribute, which could result in our having to expend significant time and expense to defend these claims and to pay material claims or settlement amounts. |
We may be subject to work stoppages at our facilities, or our customers may be subjected to work stoppages, which could seriously impact our operations and the profitability of our business. |
Changes in employment laws could increase our costs and may adversely affect our business. |
14
We depend on the services of key executives, the loss of whom could materially harm our business. |
If we lose certain of our key sales, marketing or engineering personnel, our business may be adversely affected. |
We are subject to environmental laws that could impose significant costs on us and the failure to comply with such laws could subject us to sanctions and material fines and expenses. |
15
We face additional costs associated with our post-retirement and post-employment obligations to employees which could have an adverse effect on our financial condition. |
16
Our future success depends on our ability to integrate acquired companies and manage our growth effectively. |
We may not be able to protect our intellectual property rights, brands or technology effectively, which could allow competitors to duplicate or replicate our technology and could adversely affect our ability to compete. |
Goodwill comprises a significant portion of our total assets, and if we determine that goodwill has become impaired in the future, net income in such years may be materially and adversely affected. |
Unplanned repairs or equipment outages could interrupt production and reduce income or cash flow. |
17
Our operations are highly dependent on information technology infrastructure and failures could significantly affect our business. |
Our leverage could adversely affect our financial health and make us vulnerable to adverse economic and industry conditions. |
| make it more challenging for us to obtain additional financing to fund our business strategy and acquisitions, debt service requirements, capital expenditures and working capital; | |
| increase our vulnerability to interest rate changes and general adverse economic and industry conditions; | |
| require us to dedicate a substantial portion of our cash flow from operations to service our indebtedness, thereby reducing the availability of our cash flow to finance acquisitions and to fund working capital, capital expenditures, research and development efforts and other general corporate activities; | |
| make it difficult for us to fulfill our obligations under our credit and other debt agreements; | |
| limit our flexibility in planning for, or reacting to, changes in our business and our markets; and | |
| place us at a competitive disadvantage relative to our competitors that have less debt. |
We are subject to tax laws and regulations in many jurisdictions and the inability to successfully defend claims from taxing authorities related to our current or acquired businesses could adversely affect our operating results and financial position. |
18
Genstar Capital Partners III, L.P. and Stargen III, L.P. (together, the Genstar Funds) control us and may have conflicts of interest with our other stockholders in the future. |
The market price of our common stock may be volatile, which could cause the value of your investment to decline. |
We cannot assure you that an active trading market will develop for our stock. |
A substantial number of our shares of common stock may be sold in the public market by our principal stockholders, which could adversely affect the market price of our shares, which in turn could negatively impact your investment in us. |
19
You will experience immediate and substantial dilution. |
Because we have not paid dividends in the past and do not anticipate paying dividends on our common stock in the foreseeable future, you should not expect to receive dividends on shares of our common stock. |
20
| competitive factors in the industry in which we operate; | |
| changes in general economic conditions and the cyclical nature of the markets in which we operate; | |
| our dependence on our distribution network; | |
| our ability to invest in, develop or adapt to changing technologies and manufacturing techniques; | |
| international risks on our operations; | |
| loss of our key management; | |
| increase in litigation, including product liability claims; |
21
| our substantial indebtedness; and | |
| other factors that are described under Risk Factors. |
22
| to redeem on a pro rata basis, pursuant to the terms of the indenture governing the 11 1 / 4 % senior notes due 2013, 35 percent of our 11 1 / 4 % senior notes for $24.4 million, which amount includes $2.4 million of applicable premium and $0.3 million of accrued interest; and | |
| for general corporate purposes. |
23
| on an actual basis; and | |
| on an as adjusted basis to give effect to the conversion of all shares of our preferred stock into 17,750,000 shares of common stock, which will occur automatically upon the closing of this offering, and the sale by us of 3,333,334 shares of common stock at the assumed initial public offering price of $15.00 per share, the midpoint of the range set forth on the cover page of this prospectus, in this offering and our receipt of the net offering proceeds therefrom, after deducting estimated underwriting discounts and commissions and offering expenses. In addition, the table reflects the redemption of $21.7 million of our 11 1 / 4 % senior notes and the estimated 11 1 / 4 % prepayment premium, which amounted to approximately $2.4 million, and payment of accrued interest of approximately $0.3 million. | |
As of September 29, 2006 | |||||||||
As | |||||||||
Actual | Adjusted | ||||||||
(Unaudited) | |||||||||
(In thousands) | |||||||||
Senior revolving credit facility(1)
|
$ | | $ | | |||||
9% senior secured notes
|
165,000 | 165,000 | |||||||
11
1
/
4
% senior
notes
|
62,139 | 40,390 | |||||||
17% CDPQ note
|
1,500 | 1,500 | |||||||
5.75% mortgage
|
2,479 | 2,479 | |||||||
Capital leases and short-term bank borrowings
|
3,056 | 3,056 | |||||||
Total debt
|
$ | 234,174 | $ | 212,425 | |||||
Convertible preferred stock
|
35,500 | | |||||||
Stockholders equity
|
3,605 | 77,323 | |||||||
Total capitalization
|
$ | 273,279 | $ | 289,748 | |||||
(1) | Our senior revolving credit facility has $30.0 million of borrowing capacity (including $10.0 million available for letters of credit), $27.6 million of which was available as of September 29, 2006. |
24
Assumed initial public offering price per share
|
$ | 15.00 | ||||||||
Net tangible book value per share before the offering
|
(153.70 | ) | ||||||||
Impact on net tangible book value per share attributable to the
two-for-one reverse split of common shares
|
(153.70 | ) | ||||||||
Net tangible book value per share subsequent to two-for-one
reverse split of common shares
|
(307.40 | ) | ||||||||
Impact on net tangible book value per share attributable to the
conversion of our outstanding convertible preferred shares
|
301.76 | |||||||||
Net tangible book value per share subsequent to conversion of
convertible preferred shares and two-for-one reverse split of
common shares
|
(5.64 | ) | ||||||||
Impact on net tangible book value per share of this offering
|
2.71 | |||||||||
Pro forma net tangible book value per share after this offering
|
(2.93 | ) | ||||||||
Dilution in net tangible book value per share to new investors
|
$ | 17.93 | ||||||||
25
| the total number of shares of common stock purchased from us; | |
| the total consideration paid to us, assuming an initial public offering price of $15.00 per share (before deducting the estimated underwriting discount and commissions and offering expenses payable by us in connection with this offering); and | |
| the average price per share paid by existing stockholders and by new investors purchasing shares in this offering: |
Average | |||||||||||||||||||||
Shares Purchased | Total Consideration | ||||||||||||||||||||
Per | |||||||||||||||||||||
Number | Percent | Amount | Percent | Share | |||||||||||||||||
Existing stockholders(1)
|
18,081,501 | 84.4 | % | $ | 35,500,000 | 41.5 | % | $ | 1.96 | ||||||||||||
Investors in the offering
|
3,333,334 | 15.6 | % | $ | 50,000,010 | 58.5 | % | $ | 15.00 | ||||||||||||
Total
|
21,414,835 | 100 | % | $ | 85,500,010 | 100 | % | $ | 3.99 | ||||||||||||
(1) | Excludes 1,672,756 restricted shares of common stock for which the restrictions have not lapsed based on employee service. Includes the conversion of our preferred stock into shares of our common stock at a ratio of 2:1. |
26
27
Historical
Hay Hall
Hay Hall
Holding
Holdings
Altra Year
U.K. GAAP
U.K. GAAP
Hay Hall
Ended
Year Ended
to U.S.
Hay Hall
Holdings
December 31,
December 31,
GAAP
Holdings
U.S.
Pro Forma
Pro Forma
2005
2005
Adjustments
U.S. GAAP
GAAP(a)
Adjustments
Combined
(in thousands)
$
363,465
£39,262
£
£39,262
$
71,496
$
(8,515
)(1)
$
426,446
271,952
23,015
(7
)
23,008
41,898
(6,744
)(2)
307,106
91,513
16,247
7
16,254
29,598
(1,771
)
119,340
66,163
14,909
125
14,784
26,922
(3,608
)(3)
89,477
25,350
1,338
132
1,470
2,676
1,837
29,863
19,514
1,230
1,230
2,240
4,782
(4)
26,536
(17
)
(107
)
(107
)
(195
)
(212
)
5,853
215
132
347
631
(2,945
)
3,539
3,349
292
292
532
(1,384
)(5)
2,497
$
2,504
£ (77
)
£132
£55
$
99
$
(1,561
)
$
1,042
18
n/a
n/a
n/a
n/a
n/a
18
37,937
n/a
n/a
n/a
n/a
n/a
37,937
$
139.11
n/a
n/a
n/a
n/a
n/a
$
57.89
$
0.07
n/a
n/a
n/a
n/a
n/a
$
0.03
(a) | Reflects Hay Halls Combined Statement of Operations on a U.S. GAAP basis after translation to U.S. dollars at an exchange rate of 1.821 U.S. dollars per U.K. pound sterling (the average exchange rate for the 2005 fiscal year). |
28
Hay Hall
Holdings
UK GAAP
Period from
Altra
January 1,
Hay Hall
Nine Months
2006
Holdings
Hay Hall
Ended
through
UK GAAP
Hay Hall
Holdings
September 29,
February 10,
U.S. GAAP
Holdings
U.S.
Pro Forma
Pro Forma
2006
2006
Adjustments
U.S. GAAP
GAAP(a)
Adjustments
Combined
(in thousands)
$
347,511
£
4,371
£
£
4,371
$
7,662
$
(716
)(1)
$
354,457
252,959
2,513
(1
)
2,512
4,404
(1,592
)(2)
255,771
94,552
1,858
1
1,859
3,258
876
98,686
57,333
1,706
(12
)
1,694
2,970
(1,251
)(3)
59,052
37,219
152
13
165
288
2,127
39,634
19,382
111
111
195
626
(4)
20,203
647
647
17,190
41
13
54
93
1,501
18,784
6,497
13
13
23
615
(5)
7,135
$
10,693
£
28
£
13
£
41
$
70
$
886
$
11,649
601
n/a
n/a
n/a
n/a
n/a
601
38,324
n/a
n/a
n/a
n/a
n/a
38,324
$
17.79
n/a
n/a
n/a
n/a
n/a
$
19.38
$
0.28
n/a
n/a
n/a
n/a
n/a
$
0.30
(a) | Reflects Hay Halls Unaudited Interim Condensed Statement of Operations on a U.S. GAAP basis after translation to U.S. dollars at an exchange rate of 1.753 U.S. dollars per U.K. pound sterling (the average exchange rate for the six week period ended February 10, 2006). |
29
Year | Nine Months | ||||||||
Ended | Ended | ||||||||
December 31, | September 29, | ||||||||
2005 | 2006 | ||||||||
(in thousands) | |||||||||
(1) Adjustments to net sales as follows:
|
|||||||||
Elimination of net sales of Engineered Systems of Matrix
business which is included in the Hay Hall financial statements
but which were not acquired by Altra
|
$ | (6,805 | ) | $ | (291 | ) | |||
Elimination of intercompany sales from Hay Hall to Altra
|
(1,456 | ) | (378 | ) | |||||
Elimination of intercompany sales from Altra to Hay Hall
|
(254 | ) | (47 | ) | |||||
Total pro forma adjustment
|
$ | (8,515 | ) | $ | (716 | ) | |||
(2) Adjustments to cost of sales as follows:
|
|||||||||
Elimination of cost of sales of Engineered Systems of Matrix
business which is included in the Hay Hall financial statements
but which were not acquired by Altra
|
$ | (5,121 | ) | $ | (205 | ) | |||
Elimination of cost of sales on intercompany sales from Hay Hall
to Altra
|
(1,456 | ) | (378 | ) | |||||
Elimination of cost of sales on intercompany sales from Altra to
Hay Hall
|
(254 | ) | (47 | ) | |||||
Elimination of additional cost of goods sold as a result of the
fair value adjustment to inventory recorded in connection with
the Acquisition
|
| (984 | ) | ||||||
To record additional depreciation expense resulting from the
adjustment to the fair market value of property, plant and
equipment in connection with the transaction
|
87 | 22 | |||||||
Total pro forma adjustment
|
$ | (6,744 | ) | $ | (1,592 | ) | |||
(3) Adjustments to selling, general, administrative and other
operating expenses as follows:
|
|||||||||
Elimination of selling, general, administrative and other
operations expenses of Engineered Systems of Matrix business
which is included in the Hay Hall financial statements but which
were not acquired by Altra
|
$ | (1,724 | ) | $ | (156 | ) | |||
Elimination of the selling, general, administrative, and other
operations expenses of Hay Halls corporate office business
which is included in the Hay Hall financial statements but which
were not acquired by Altra
|
(2,844 | ) | (330 | ) | |||||
Additional expense required to present amortization expense
(based on lives ranging from eight to 12 years) associated
with intangible assets recorded in connection with the
Acquisition
|
960 | 240 | |||||||
Elimination of additional expense related to Genstar Capital,
L.P. transaction fee
|
| (1,005 | ) | ||||||
Total pro forma adjustment
|
$ | (3,608 | ) | $ | (1,251 | ) | |||
(4) Adjustments to interest expense as follows:
|
|||||||||
Additional expense required associated with the notes issued to
finance the Hay Hall Acquisition (consists of interest on
£33.0 million of notes at
11
1
/
4
%)
|
$ | 6,760 | $ | 756 | |||||
Elimination of interest expense recorded at Hay Hall
|
(2,240 | ) | (195 | ) | |||||
Additional expense required to present a full year of
amortization expense (based on a seven year life)
associated with debt issuance costs incurred in connection with
the notes
|
262 | 65 | |||||||
Total pro forma adjustment
|
$ | 4,782 | $ | 626 | |||||
(5) Adjustments to record additional tax (benefit) expense of
47% and 41%, calculated at an effective which reflects the
federal, state and foreign statutory rate in effect at the
beginning of 2005 and 2006, respectively, resulting from the
other pro forma adjustments. Historical tax expense has not been
adjusted
|
$ | (1,384 | ) | $ | 615 |
30
Altra Holdings, Inc. | Predecessor | ||||||||||||||||||||||||||||||||
Nine | Nine | ||||||||||||||||||||||||||||||||
Months | Months | Twelve | Period from | ||||||||||||||||||||||||||||||
Ended | Ended | Months | Period from | January 1, 2004 | |||||||||||||||||||||||||||||
September 29, | September 30, | Ended | December 1, 2004 | through | Year Ended December 31, | ||||||||||||||||||||||||||||
2006 | 2005 | December 31, | through | November 30, | |||||||||||||||||||||||||||||
(Unaudited) | (Unaudited) | 2005 | December 31, 2004 | 2004 | 2003 | 2002 | 2001 | ||||||||||||||||||||||||||
(in thousands) | |||||||||||||||||||||||||||||||||
Statement of Operations Data:
|
|||||||||||||||||||||||||||||||||
Net sales
|
$ | 347,511 | $ | 273,491 | $ | 363,465 | $ | 28,625 | $ | 275,037 | $ | 266,863 | $ | 253,217 | $ | 259,761 | |||||||||||||||||
Cost of sales
|
252,959 | 206,906 | 271,952 | 23,847 | 209,253 | 207,941 | 190,465 | 193,577 | |||||||||||||||||||||||||
Gross profit
|
94,552 | 66,585 | 91,513 | 4,778 | 65,784 | 58,922 | 62,752 | 66,184 | |||||||||||||||||||||||||
Selling, general and administrative expenses
|
57,364 | 45,990 | 61,480 | 8,973 | 45,321 | 49,513 | 48,303 | 50,508 | |||||||||||||||||||||||||
Research and development expenses
|
3,807 | 3,495 | 4,683 | 378 | 3,947 | 3,455 | 3,103 | 2,518 | |||||||||||||||||||||||||
Gain on curtailment of post-retirement benefit plan
|
(3,838 | ) | | | | | | | | ||||||||||||||||||||||||
Gain on sale of assets
|
| | | | (1,300 | ) | | | | ||||||||||||||||||||||||
Restructuring charge, asset impairment and transition expenses
|
| | | | 947 | 11,085 | 27,825 | | |||||||||||||||||||||||||
Income (loss) from operations
|
37,219 | 17,100 | 25,350 | (4,573 | ) | 16,869 | (5,131 | ) | (16,479 | ) | 13,158 | ||||||||||||||||||||||
Interest expense
|
19,382 | 14,647 | 19,514 | 1,612 | 4,294 | 5,368 | 5,489 | 6,655 | |||||||||||||||||||||||||
Other expense (income)
|
647 | 3 | (17 | ) | | 148 | 465 | (312 | ) | 94 | |||||||||||||||||||||||
Income (loss) before income taxes, discontinued operations and
cumulative effect of change in accounting principles
|
17,190 | 2,450 | 5,853 | (6,185 | ) | 12,427 | (10,964 | ) | (21,656 | ) | 6,409 | ||||||||||||||||||||||
Provision (benefit) for income taxes
|
6,497 | 1,241 | 3,349 | (292 | ) | 5,532 | (1,658 | ) | 2,455 | 4,794 | |||||||||||||||||||||||
Loss from disposal of discontinued, net of income taxes
|
| | | | | | (700 | ) | (1,867 | ) | |||||||||||||||||||||||
Income (loss) from operations and disposal of discontinued
operations, net of income taxes
|
10,693 | 1,209 | 2,504 | (5,893 | ) | 6,895 | (9,306 | ) | (24,811 | ) | (252 | ) | |||||||||||||||||||||
Cumulative effect of change in accounting principle
goodwill impairment
|
| | | | | | (83,412 | ) | | ||||||||||||||||||||||||
Net income (loss)
|
$ | 10,693 | $ | 1,209 | $ | 2,504 | $ | (5,893 | ) | $ | 6,895 | $ | (9,306 | ) | $ | (108,223 | ) | $ | (252 | ) | |||||||||||||
31
Altra Holdings, Inc. | Predecessor | ||||||||||||||||||||||||||||||||
Nine | Nine | ||||||||||||||||||||||||||||||||
Months | Months | Twelve | Period from | ||||||||||||||||||||||||||||||
Ended | Ended | Months | Period from | January 1, 2004 | |||||||||||||||||||||||||||||
September 29, | September 30, | Ended | December 1, 2004 | through | Year Ended December 31, | ||||||||||||||||||||||||||||
2006 | 2005 | December 31, | through | November 30, | |||||||||||||||||||||||||||||
(Unaudited) | (Unaudited) | 2005 | December 31, 2004 | 2004 | 2003 | 2002 | 2001 | ||||||||||||||||||||||||||
(in thousands) | |||||||||||||||||||||||||||||||||
Weighted average shares of common stock outstanding(1):
|
|||||||||||||||||||||||||||||||||
Basic
|
601 | | 18 | | n/a | n/a | n/a | n/a | |||||||||||||||||||||||||
Diluted
|
38,324 | 37,596 | 37,937 | | n/a | n/a | n/a | n/a | |||||||||||||||||||||||||
Net income per share(1):
|
|||||||||||||||||||||||||||||||||
Basic
|
$ | 17.79 | $ | | $ | 139.11 | $ | | n/a | n/a | n/a | n/a | |||||||||||||||||||||
Diluted
|
$ | 0.28 | $ | 0.03 | $ | 0.07 | $ | | n/a | n/a | n/a | n/a |
Altra Holdings, Inc. | Predecessor | |||||||||||||||||||||||||||||||||
Nine | Nine | |||||||||||||||||||||||||||||||||
Months | Months | Twelve | Period from | Period from | ||||||||||||||||||||||||||||||
Ended | Ended | Months | December 1, 2004 | January 1, 2004 | ||||||||||||||||||||||||||||||
September 29, | September 30, | Ended | through | through | Year Ended December 31, | |||||||||||||||||||||||||||||
2006 | 2005 | December 31, | December 31, | November 30, | ||||||||||||||||||||||||||||||
(Unaudited) | (Unaudited) | 2005 | 2004 | 2004 | 2003 | 2002 | 2001 | |||||||||||||||||||||||||||
(in thousands) | ||||||||||||||||||||||||||||||||||
Other Financial Data:
|
||||||||||||||||||||||||||||||||||
EBITDA(2)(3)
|
$ | 46,883 | $ | 25,561 | $ | 36,900 | $ | (3,654 | ) | $ | 22,795 | $ | 3,057 | $ | (90,732 | ) | $ | 23,404 | ||||||||||||||||
Depreciation and amortization
|
10,311 | 8,464 | 11,533 | 919 | 6,074 | 8,653 | 9,547 | 12,207 | ||||||||||||||||||||||||||
Purchase of fixed assets
|
6,133 | 3,401 | 6,199 | 289 | 3,489 | 5,294 | 5,911 | 4,374 | ||||||||||||||||||||||||||
Cash flow provided by (used in):
|
||||||||||||||||||||||||||||||||||
Operating activities
|
10,850 | 11,909 | 12,023 | 5,623 | 3,604 | (14,289 | ) | 21,934 | 27,658 | |||||||||||||||||||||||||
Investing activities
|
(60,435 | ) | (4,006 | ) | (5,197 | ) | (180,401 | ) | 953 | (1,573 | ) | (4,585 | ) | (3,645 | ) | |||||||||||||||||||
Financing activities
|
45,023 | (622 | ) | (971 | ) | 179,432 | (6,696 | ) | 12,746 | (13,037 | ) | (23,379 | ) |
Altra Holdings, Inc. | Predecessor | ||||||||||||||||||||||||||||
September 29, | September 30, | ||||||||||||||||||||||||||||
2006 | 2005 | December 31, | December 31, | ||||||||||||||||||||||||||
(Unaudited) | (Unaudited) | 2005 | 2004 | 2003 | 2002 | 2001 | |||||||||||||||||||||||
(in thousands) | |||||||||||||||||||||||||||||
Balance Sheet Data (at end of period):
|
|||||||||||||||||||||||||||||
Cash and cash equivalents
|
$ | 5,760 | $ | 10,294 | $ | 10,060 | $ | 4,729 | $ | 3,163 | $ | 5,214 | $ | 2,706 | |||||||||||||||
Working capital(4)
|
80,336 | 53,449 | 52,863 | 57,571 | 51,375 | 10,200 | 35,225 | ||||||||||||||||||||||
Total assets
|
374,084 | 300,892 | 297,691 | 299,387 | 174,324 | 173,034 | 276,015 | ||||||||||||||||||||||
Total debt
|
229,327 | 173,640 | 173,760 | 173,851 | 1,888 | 65,035 | 69,968 | ||||||||||||||||||||||
Convertible preferred stock and other long-term liabilities
|
72,676 | 73,779 | 71,622 | 76,665 | 62,179 | 62,877 | 31,553 |
32
(1) | Weighted average shares of common stock outstanding and net income per share are based on historical information and do not take into effect the conversion of preferred stock to common stock or the two for one reverse split of common stock. |
(2) | EBITDA is defined as earnings before interest, income taxes, depreciation and amortization. EBITDA is used by us as a performance measure. Management believes that EBITDA provides relevant information for our investors because it is useful for trending, analyzing and benchmarking the performance and value of our business. Management also believes that EBITDA is useful in assessing current performance compared with the historical performance of our Predecessor because significant line items within our income statements such as depreciation, amortization and interest expense were significantly impacted by the PTH Acquisition. Internally, EBITDA is used as a financial measure to assess the operating performance and is an important measure in our incentive compensation plans. EBITDA has important limitations, and should not be considered in isolation or as a substitute for analysis of our results as reported under GAAP. For example, EBITDA does not reflect: |
| cash expenditures, or future requirements, for capital expenditures or contractual commitments; | |
| changes in, or cash requirements for, working capital needs; | |
| the significant interest expense, or the cash requirements necessary to service interest or principal payments, on debts; | |
| tax distributions that would represent a reduction in cash available to us; and | |
| any cash requirements for assets being depreciated and amortized that may have to be replaced in the future. |
Altra Holdings, Inc. | Predecessor | |||||||||||||||||||||||||||||||||
Twelve | Period from | Period from | ||||||||||||||||||||||||||||||||
Nine Months | Nine Months | Months | December 1, | January 1, | ||||||||||||||||||||||||||||||
Ended | Ended | Ended | 2004 through | 2004 through | Year Ended December 31, | |||||||||||||||||||||||||||||
September 29, | September 30, | December 31, | December 31, | November 30, | ||||||||||||||||||||||||||||||
2006 | 2005 | 2005 | 2004 | 2004 | 2003 | 2002 | 2001 | |||||||||||||||||||||||||||
Net income
(loss) |
$ | 10,693 | $ | 1,209 | $ | 2,504 | $ | (5,893 | ) | $ | 6,895 | $ | (9,306 | ) | $ | (108,223 | ) | $ | (252 | ) | ||||||||||||||
Adjustments:
|
||||||||||||||||||||||||||||||||||
Provision (benefit)
for income taxes |
6,497 | 1,241 | 3,349 | (292 | ) | 5,532 | (1,658 | ) | 2,455 | 4,794 | ||||||||||||||||||||||||
Interest expense,
net |
19,382 | 14,647 | 19,514 | 1,612 | 4,294 | 5,368 | 5,489 | 6,655 | ||||||||||||||||||||||||||
Depreciation and amortization
|
10,311 | 8,464 | 11,533 | 919 | 6,074 | 8,653 | 9,547 | 12,207 | ||||||||||||||||||||||||||
EBITDA
|
46,883 | 25,561 | 36,900 | (3,654 | ) | 22,795 | 3,057 | (90,732 | ) | 23,404 |
EBITDA is not a recognized measurement under GAAP, and when analyzing our operating performance, you should use EBITDA in addition to, and not as an alternative for, income (loss) from operations and net income (loss) (as determined in accordance with GAAP). Because not all companies use identical calculations, our presentation of EBITDA and may not be comparable to similarly titled measures of other companies. The amounts shown for EBITDA also differ from the amounts calculated under similarly titled definitions in our debt instruments, which are further |
33
adjusted to reflect certain other cash and non-cash charges and are used to determine compliance with financial covenants and our ability to engage in certain activities, such as incurring additional debt and making certain restricted payments. | |
To compensate for the limitations of EBITDA, we utilize several GAAP measures to review our performance. These GAAP measures include, but are not limited to, net income (loss), income (loss) from operations, cash provided by (used in) operations, cash provided by (used in) investing activities and cash provided by (used in) financing activities. These important GAAP measures allow management to, among other things, review and understand our use of cash from period to period, compare our operations with competitors on a consistent basis and understand the revenues and expenses matched to each other for the applicable reporting period. We believe that the use of these GAAP measures, supplemented by the use of EBITDA, allows us to have a greater understanding of our performance and allows us to adapt to changing trends and business opportunities. |
(3) | These amounts include expenses relating to non-cash inventory step-up costs, management fees and transaction expenses associated with acquisitions which, if subtracted out, would result in a higher EBITDA. Inventory step-up costs accounted for $2.3 million, $1.7 million, $1.7 million and $1.7 million, respectively, for the nine months ended September 29, 2006, for the nine months ended September 30, 2005, the twelve months ended December 31, 2005 and the Period from December 1, 2004 through December 31, 2004. Management fees consisted of $0.8 million, $0.8 million, $1.0 million and $0.1 million, respectively, for the nine months ended September 29, 2006, for the nine months ended September 30, 2005, the twelve months ended December 31, 2005 and the Period from December 1, 2004 through December 31, 2004. Transaction fees and expenses associated with acquisitions accounted for $1.0 million and $4.4 million, respectively, for the nine months ended September 29, 2006 and the period from December 1, 2004 through December 31, 2004. |
(4) | Working capital consists of total current assets less total current liabilities. |
34
35
36
| In 2003, our Predecessor incurred transition expenses, including relocation, training, recruiting and moving costs, directly related to implementing its restructuring activities amounting to $9.1 million. | |
| In 2003, our Predecessor recorded a $2.0 million loss from the sale of certain real estate associated with facilities closed as a part of its restructuring activities. | |
| In 2005, we re-negotiated two of our U.S. collective bargaining agreements which we estimate provide for savings of $0.8 million annually. | |
| In 2006, we re-negotiated one of our U.S. collective bargaining agreements which we estimate provides for savings of $2.2 million annually. |
37
Interim Results of Operations |
Nine Months Ended | Nine Months Ended | ||||||||
September 29, 2006 | September 30, 2005 | ||||||||
(Unaudited) | |||||||||
(In thousands, except percentage data) | |||||||||
Net sales
|
$ | 347,511 | $ | 273,491 | |||||
Cost of sales
|
252,959 | 206,906 | |||||||
Gross profit
|
94,552 | 66,585 | |||||||
Gross profit percentage
|
27.2 | % | 24.4 | % | |||||
Selling, general and administrative expenses
|
57,364 | 45,990 | |||||||
Research and development expenses
|
3,807 | 3,495 | |||||||
Gain on curtailment of post-retirement benefit plan
|
(3,838 | ) | | ||||||
Income from operations
|
37,219 | 17,100 | |||||||
Interest expense, net
|
19,382 | 14,647 | |||||||
Other non-operating (income) expense
|
647 | 3 | |||||||
Income before income taxes
|
17,190 | 2,450 | |||||||
Provision for income taxes
|
6,497 | 1,241 | |||||||
Net income
|
$ | 10,693 | $ | 1,209 | |||||
Nine Months Ended September 29, 2006 Compared with Nine Months Ended September 30, 2005 |
Net sales |
Gross profit |
Selling, general and administrative expenses |
38
Research and development expenses |
Interest expense, net |
Provision for income taxes |
39
Year End Results of Operations |
From | ||||||||||||||||||||||
Combined | Inception | Predecessor | ||||||||||||||||||||
12 Months | (December 1, | |||||||||||||||||||||
Ended | 2004) | 11 Months | ||||||||||||||||||||
Year Ended | December 31, | through | Ended | Year Ended | ||||||||||||||||||
December 31, | 2004 | December 31, | November 30, | December 31, | ||||||||||||||||||
2005 | (Unaudited) | 2004 | 2004 | 2003 | ||||||||||||||||||
(In thousands, except percentage data) | (In thousands, except | |||||||||||||||||||||
percentage data) | ||||||||||||||||||||||
Net sales
|
$ | 363,465 | $ | 303,662 | $ | 28,625 | $ | 275,037 | $ | 266,863 | ||||||||||||
Cost of sales
|
271,952 | 233,100 | 23,847 | 209,253 | 207,941 | |||||||||||||||||
Gross profit
|
91,513 | 70,562 | 4,778 | 65,784 | 58,922 | |||||||||||||||||
Gross profit percentage
|
25.2 | % | 23.2 | % | 16.7 | % | 23.9 | % | 22.1 | % | ||||||||||||
Selling, general and administrative expenses
|
61,579 | 54,294 | 8,973 | 45,321 | 49,513 | |||||||||||||||||
Research and development expenses
|
4,683 | 4,325 | 378 | 3,947 | 3,455 | |||||||||||||||||
Gain on sale of assets
|
(99 | ) | (1,300 | ) | | (1,300 | ) | | ||||||||||||||
Restructuring charge, asset impairment and transition expenses
|
| 947 | | 947 | 11,085 | |||||||||||||||||
Income (loss) from operations
|
25,350 | 12,296 | (4,573 | ) | 16,869 | (5,131 | ) | |||||||||||||||
Interest expense, net
|
19,514 | 5,906 | 1,612 | 4,294 | 5,368 | |||||||||||||||||
Other non-operating (income) expense
|
(17 | ) | 148 | | 148 | 465 | ||||||||||||||||
Income (loss) before income taxes
|
5,853 | 6,242 | (6,185 | ) | 12,427 | (10,964 | ) | |||||||||||||||
Provision (benefit) for income taxes
|
3,349 | 5,240 | (292 | ) | 5,532 | (1,658 | ) | |||||||||||||||
Net income (loss)
|
$ | 2,504 | $ | 1,002 | $ | (5,893 | ) | $ | 6,895 | $ | (9,306 | ) | ||||||||||
Year Ended December 31, 2005 Compared with Year Ended December 31, 2004 |
Net sales |
Gross profit |
40
Selling, general and administrative expenses |
Research and development expenses |
Gain on sale of assets |
Restructuring charge, asset impairment and transition expenses |
Interest expense, net |
Provision for income taxes |
Year Ended December 31, 2004 Compared with Year Ended December 31, 2003 |
Net sales |
41
Gross profit |
Selling, general and administrative expenses |
Research and development expenses |
Restructuring charge, asset impairment and transition expenses |
Interest expense |
Other non-operating (income) expense |
42
Provision for income taxes |
Predecessor | |||||||||||||||||||||||||||||||||||||
Period from | Period from | ||||||||||||||||||||||||||||||||||||
Altra Holdings, Inc. | December 1, | October 2, | |||||||||||||||||||||||||||||||||||
2004 to | 2004 to | ||||||||||||||||||||||||||||||||||||
September 29, | June 30, | March 31, | Dec. 31, | Sept. 30, | July 1, | April 1, | December 31, | November 30, | |||||||||||||||||||||||||||||
2006 | 2006 | 2006 | 2005 | 2005 | 2005 | 2005 | 2004 | 2004 | |||||||||||||||||||||||||||||
(In | |||||||||||||||||||||||||||||||||||||
(In thousands, except per share data) | thousands, | ||||||||||||||||||||||||||||||||||||
except per | |||||||||||||||||||||||||||||||||||||
share data) | |||||||||||||||||||||||||||||||||||||
Net sales
|
$ | 112,953 | $ | 119,774 | $ | 114,784 | $ | 89,974 | $ | 85,155 | $ | 93,034 | $ | 95,302 | $ | 28,625 | $ | 46,338 | |||||||||||||||||||
Cost of sales
|
82,528 | 87,501 | 82,930 | 65,046 | 63,784 | 69,720 | 73,402 | 23,847 | 36,651 | ||||||||||||||||||||||||||||
Gross profit
|
30,425 | 32,273 | 31,854 | 24,928 | 21,371 | 23,314 | 21,900 | 4,778 | 9,687 | ||||||||||||||||||||||||||||
Selling, general and administrative and research and development
expenses
|
20,858 | 20,382 | 19,931 | 16,678 | 16,094 | 16,456 | 16,935 | 9,351 | 8,996 | ||||||||||||||||||||||||||||
Gain on curtailment of post-retirement benefit plan
|
(3,838 | ) | | | | | | | | | |||||||||||||||||||||||||||
Operating profit (loss)
|
13,405 | 11,891 | 11,923 | 8,250 | 5,277 | 6,858 | 4,965 | (4,573 | ) | 691 | |||||||||||||||||||||||||||
Interest expense, net
|
6,567 | 6,374 | 6,441 | 4,867 | 4,876 | 4,902 | 4,869 | 1,612 | 702 | ||||||||||||||||||||||||||||
Other expense (income), net
|
734 | 72 | (159 | ) | (20 | ) | (10 | ) | 13 | | | (28 | ) | ||||||||||||||||||||||||
Income (loss) before income taxes
|
6,104 | 5,445 | 5,641 | 3,403 | 411 | 1,943 | 96 | (6,185 | ) | 17 | |||||||||||||||||||||||||||
Provision for income taxes (benefit)
|
2,311 | 1,749 | 2,437 | 2,108 | 207 | 859 | 175 | (292 | ) | 270 | |||||||||||||||||||||||||||
Net income (loss)
|
$ | 3,793 | $ | 3,696 | $ | 3,204 | $ | 1,295 | $ | 204 | $ | 1,084 | $ | (79 | ) | $ | (5,893 | ) | $ | (253 | ) | ||||||||||||||||
Weighted average shares of common stock outstanding(1):
|
|||||||||||||||||||||||||||||||||||||
Basic
|
663 | 663 | 663 | 70 | | | | | n/a | ||||||||||||||||||||||||||||
Diluted
|
38,740 | 38,825 | 38,724 | 38,100 | 37,079 | 36,371 | | | n/a | ||||||||||||||||||||||||||||
Net income per share(1):
|
|||||||||||||||||||||||||||||||||||||
Basic
|
$ | 5.72 | $ | 5.57 | $ | 4.83 | $ | 18.50 | $ | | $ | | $ | | $ | | n/a | ||||||||||||||||||||
Diluted
|
$ | 0.10 | $ | 0.10 | $ | 0.08 | $ | 0.03 | $ | 0.01 | $ | 0.03 | $ | | $ | | n/a |
(1) | Weighted average shares of common stock outstanding and net income per share are based on historical information and do not take into effect the conversion of preferred stock to common stock or the two for one reverse split of common stock. |
43
Overview |
Borrowings |
44
Capital Expenditures |
Pension Plans |
45
Comparative Cash Flows |
46
Debt Repayment |
Payments Due by Period | ||||||||||||||||||||||||
2006 | 2007 | 2008 | 2009 | 2010 | Thereafter | |||||||||||||||||||
9% senior secured notes(1)
|
$ | | $ | | $ | | $ | | $ | | $ | 165.0 | ||||||||||||
17% CDPQ note(2)
|
| | | | | 14.0 | ||||||||||||||||||
Senior revolving credit facility(3)
|
| | | | | | ||||||||||||||||||
Capital leases(4)
|
0.2 | 0.2 | | | | | ||||||||||||||||||
Operating leases(5)
|
2.7 | 2.3 | 1.4 | 0.7 | 0.5 | 1.5 | ||||||||||||||||||
Total contractual obligations
|
2.9 | 2.5 | 1.4 | 0.7 | 0.5 | 180.5 |
(1) | We have semi-annual cash interest requirements due on the 9% senior secured notes with $14.9 million payable in 2006, 2007, 2008, 2009, 2010 and thereafter. |
47
(2) | We have quarterly interest requirements due on the 17% CDPQ note. Interest is payable in cash or as paid-in-kind to be accrued against the outstanding principal balance at the discretion of the Company. During the nine months ended September 29, 2006 the Company paid $12.5 million of the 17% CDPQ note. |
(3) | We have up to $30.0 million of borrowing capacity, through November 2009, under our senior revolving credit facility (including $10.0 million available for use for letters of credit). At September 29, 2006, we had no outstanding borrowings and $2.4 million of outstanding letters of credit under our senior revolving credit facility. |
(4) | As of September 29, 2006 we had capital lease obligations of $0.2 million in 2006, $0.7 million in 2007, $0.4 million in 2008, $0.3 million in 2009, $0.2 million in 2010 and $0.3 million thereafter. |
(5) | As of September 29, 2006 we had operating lease obligations of $0.6 million in 2006, $3.0 million in 2007, $1.9 million in 2008, $1.0 million in 2009, $0.6 million in 2010 and $1.5 million thereafter. |
48
49
50
51
Foreign Currency Exchange Rate Risk |
Interest rate risk |
52
53
54
55
| Leverage Our Sales and Distribution Network. We intend to continue to leverage our relationships with our distributors to gain shelf space, further integrate our recently acquired brands with our core brands and sell new products. In addition, we intend to continue to actively pursue new OEM opportunities with innovative and cost-effective product designs and applications to help maintain and grow our aftermarket revenues. For example, in 2002 we launched a new product in the wrap spring category. Despite established competition within this particular category, we were able to quickly penetrate the market and we expect to exceed 15% in global market share in 2006 due to the strength of our Warner Electric brand. We seek to capitalize on customer brand preference for our products to generate pull-through aftermarket demand from our distribution channel. We believe this strategy also allows our distributors to achieve high profit margins, further enhancing our preferred position with them. | |
| Focus our Strategic Marketing on New Growth Opportunities. We intend to expand our emphasis on strategic marketing to focus on new growth opportunities in key end user markets. Through a systematic process that leverages our core brands and products, we seek to identify attractive markets and product niches, collect customer and market data, identify market drivers, tailor product and service solutions to specific market and customer requirements and deploy resources to gain market share and drive future sales growth. | |
| Accelerate New Product and Technology Development. We are highly focused on driving new product development across our business in response to customer needs in various markets. Through our strategic marketing efforts, we continually gain market and customer intelligence, which feeds new product and technology development initiatives that are designed to address particular needs or problems customers identify. This focus has allowed us to respond quickly to new market opportunities. |
Recent new product development examples include the Foot/ Deck Mount Kopper Kool Brake, a new clutch brake design which significantly extends product life and can dramatically reduce blade stop time on commercial and residential lawn tractors, a new magnetic particle clutch designed to solve a number of long-standing performance issues on soft-drink bottle capping applications, and the RA10 speed reducer, designed for use in the rapidly growing market for armor-fitted military vehicles used by the US military. In total, we expect new products developed by us during the past three years to generate approximately $40 million in revenues in 2006. |
56
| Capitalize on Growth and Sourcing Opportunities in the Asia-Pacific Market. We intend to leverage our established sales offices in China, Taiwan and Singapore, as well as add representation in Japan and South Korea. We also intend to expand our manufacturing presence in Asia beyond our current plant in Shenzhen, China, to increase sales in the high-growth Asia-Pacific region. This region also offers opportunities for low-cost country sourcing of raw materials. During 2005, we sourced approximately 12% of our purchases from low-cost countries, resulting in average cost reductions of approximately 40% for these products. Within the next five years, we intend to utilize our sourcing office in Shanghai to significantly increase our current level of low-cost country sourced purchases. We may also consider opportunities to outsource some of our production from North American and Western European locations to Asia. | |
| Continue to Improve Operational and Manufacturing Efficiencies through ABS. We believe we can continue to improve profitability through cost control, overhead rationalization, global process optimization, continued implementation of lean manufacturing techniques and strategic pricing initiatives. Our operating plan, based on manufacturing centers of excellence, provides additional opportunities to reduce costs by sharing best practices across geographies and business lines and by consolidating purchasing processes. We have implemented these principles with our recent acquisitions of Hay Hall and Bear Linear and intend to apply such principles to future acquisitions. | |
| Pursue Strategic Acquisitions that Complement our Strong Platform. With our extensive MPT and motion control products, our strong customer and distributor relationships and our know-how in implementing lean enterprise initiatives through ABS, we have an ideal platform for acquiring and successfully integrating related businesses, as evidenced through our acquisition and integration of Hay Hall and Bear Linear. Management believes that there may be a number of attractive potential acquisition candidates in the future, in part due to the fragmented nature of the industry. We plan to continue our disciplined pursuit of strategic acquisitions to accelerate our growth, enhance our industry leadership and create value. |
57
Products | Principal Brands | Principal Markets | Sample Applications | |||
Clutches and Brakes
|
Warner Electric, Wichita Clutch, Formsprag Clutch, Stieber Clutch, Matrix International, Inertia Dynamics, Twiflex Limited, Industrial Clutch, Marland Clutch | Aerospace, energy, material handling, metals, turf and garden, mining | Elevators, forklifts, lawn mowers, oil well drawworks, punch presses, conveyors | |||
Gearing
|
Boston Gear, Nuttall Gear, Delroyd Worm Gear, | Food processing, material handling, metals, transportation | Conveyors, ethanol mixers, packaging machinery, rail car wheel drives | |||
Engineered Couplings
|
Ameridrives, Bibby Transmissions | Energy, metals, plastics | Extruders, turbines, steel strip mills | |||
Engineered Bearing Assemblies
|
Kilian Manufacturing | Aerospace, material handling, transportation | Cargo rollers, steering columns, conveyors | |||
Power Transmission Components
|
Warner Electric, Boston Gear, Huco Dynatork, Bear Linear, Matrix International, Saftek | Material handling, metals, turf and garden | Conveyors, lawn mowers, machine tools |
| Electromagnetic Clutches and Brakes. Our industrial products include clutches and brakes with specially designed controls for material handling, forklift, elevator, medical mobility, mobile off-highway, baggage handling and plant productivity applications. We also offer a line of clutch and brake products for walk-behind mowers, residential lawn tractors and commercial mowers. While industrial applications are predominant, we also manufacture several vehicular niche applications including on-road refrigeration compressor clutches and agricultural equipment clutches. We market our electromagnetic products under the Warner Electric, IDI and Matrix brand names. | |
| Overrunning Clutches. Specific product lines include the Formsprag and Stieber indexing and backstopping clutches. Primary industrial applications include conveyors, gear reducers, hoists and cranes, mining machinery, machine tools, paper machinery, packaging machinery, pumping equipment and other specialty machinery. We market and sell these products under the Formsprag, Marland and Stieber brand names. | |
| Heavy Duty Clutches and Brakes. Our heavy duty clutch and brake product lines serve various markets including metal forming, off-shore and land-based oil and gas drilling platforms, mining material handling, marine applications and various off-highway and construction equipment segments. Our line of heavy duty pneumatic, hydraulic and caliper clutches and brakes are marketed under the Wichita Clutch and Twiflex brand names. |
58
| Bear Linear. Bear Linear is a designer and manufacturer of rugged service electromechanical linear actuators for off-highway vehicles, agriculture, turf care, special vehicles, medical equipment, industrial and marine applications. | |
| Huco Dynatork. Huco Dynatork is a leading manufacturer and supplier of a complete range of precision couplings, universal joints, rod ends and linkages. | |
| Saftek. Saftek manufactures a broad range of high quality non-asbestos friction materials for industrial, marine, construction, agricultural and vintage and classic cars and motorcycles. | |
| Other Accessories. Our Boston Gear, Warner Electric and Matrix businesses make or market several other accessories such as sensors, sleeve bearings, AC/ DC motors, adjustable speed drives, shaft accessories, face tooth couplings and fluid power components that are used in numerous end markets. |
| lowering the cost of manufacturing our existing products; | |
| redesigning existing product lines to increase their efficiency or enhance their performance; and | |
| developing new product applications. |
59
60
61
62
63
64
Number of
Owned/
Lease
Location
Brand
Major Products
Employees(1)
Sq Ft.
Leased
Expiration
Warner Electric
Electromagnetic Clutches & Brakes
222
104,288
Owned
N/A
Kilian Manufacturing
Engineered Bearing Assemblies
157
97,000
Owned
N/A
Wichita Clutch
Heavy Duty Clutches and Brakes
113
90,400
Owned
N/A
Formsprag
Overrunning Clutches
88
79,000
Owned
N/A
Ameridrives
Couplings
139
76,200
Owned
N/A
Warner Electric
Electromagnetic Clutches & Brakes & Coils
132
35,000
Owned
N/A
Boston Gear
Gearing & Power Transmission Components
179
193,000
Leased
February 28, 2013
Nuttall Gear
Gearing
129
155,509
Leased
March 31, 2008
Inertia Dynamics
Electromagnetic Clutches & Brakes
112
32,000
Leased
May 31, 2007
Bear Linear
Linear Actuators
11
21,000
Leased
June 30, 2009
Altra, Boston Gear
72
30,350
Leased
February 12, 2008
Stieber
Overrunning Clutches
65
57,609
Owned
N/A
Warner Electric
Electromagnetic Clutches & Brakes
138
50,129
Owned
N/A
Wichita Clutch
Heavy Duty Clutches and Brakes
42
49,000
Owned
N/A
Warner Electric
Electromagnetic Clutches & Brakes
53
38,751
Owned
N/A
Kilian Manufacturing
Engineered Bearing Assemblies
74
29,000
Owned
N/A
Bibby Transmissions
Couplings
109
26,100
Owned
N/A
Warner Electric
Electromagnetic Clutches & Precision Components
331
112,271
Leased
December 15, 2008
Matrix International
Clutch Brakes, Couplings
111
52,500
Leased
February 28, 2011
Stieber
Overrunning Clutches
55
32,292
Leased
(4)
Kilian Manufacturing
Engineered Bearing Assemblies
47
30,120
Leased
(5)
Twiflex
Heavy Duty Clutches and Brakes
52
27,500
Leased
September 30, 2009
Huco Dynatork
Couplings, Power Transmission Components
60
13,565
Leased
July 31, 2007
Saftek
Friction Material
16
4,400
Leased
August 31, 2008
(1)
Includes full-time employees.
(2)
Certain employees at these locations provide general and
administrative services for our other locations.
(3)
Corporate Headquarters and selective Boston Gear functions.
(4)
Must give the lessor twelve month notice for termination.
(5)
Month to month lease.
Table of Contents
Table of Contents
Table of Contents
Name | Age | Position | ||||
Michael L. Hurt
|
61 | Chief Executive Officer and Director | ||||
Carl R. Christenson
|
47 | President and Chief Operating Officer | ||||
David A. Wall
|
48 | Chief Financial Officer | ||||
Gerald Ferris
|
57 | Vice President of Global Sales, Altra Industrial | ||||
Timothy McGowan
|
49 | Vice President of Human Resources, Altra Industrial | ||||
Edward L. Novotny
|
54 | Vice President and General Manager, Boston Gear, Overrunning Clutch, Huco | ||||
Craig Schuele
|
43 | Vice President of Marketing and Business Development, Altra Industrial | ||||
Jean-Pierre L. Conte
|
43 | Director | ||||
Richard D. Paterson
|
63 | Director | ||||
Darren J. Gold
|
36 | Director | ||||
Frank E. Bauchiero
|
71 | Director | ||||
Larry McPherson
|
61 | Director |
65
66
Audit Committee |
| the integrity of our financial statements; | |
| our compliance with legal and regulatory requirements; | |
| our independent auditors qualifications and independence; | |
| the performance of our independent auditors and our internal audit function; and | |
| the preparation of the report required to be prepared by the committee pursuant to SEC rules. |
67
Nominating and Corporate Governance Committee |
| identify and to recommend to the board individuals qualified to serve as directors of our company and on committees of the board; | |
| advise the board with respect to the board composition, procedures and committees; | |
| develop and recommend to the board a set of corporate governance principles and guidelines applicable to us; and | |
| oversee the evaluation of the board and our management. |
Compensation Committee |
68
69
70
71
72
Long-Term
Annual Compensation
Compensation
Other
Restricted
All Other
Name and Principal Position
Year
Salary
Bonus
Annual
Stock Award(s)
Compensation
2005
$
347,500
$
446,375
(1)
$
68,233
(4)
$
12,600
(9)
Chief Executive Officer
2004
43,301
18,146
(12)
157,201
(13)
and Director
2003
2005
240,994
290,141
(2)
78,000
(5)
174,134
(10)
President and Chief
2004
Operating Officer
2003
2005
208,523
149,925
(3)
39,000
(6)
51,145
(11)
Chief Financial Officer
2004
2003
2005
183,614
112,378
19,500
(7)
12,600
(9)
Vice President and
2004
178,954
77,764
146,518
(14)
GM Boston Gear and
2003
174,930
24,980
Overrunning Clutch
2005
174,882
67,007
19,500
(8)
10,500
(9)
Vice President of Global
2004
169,388
95,659
124,125
(15)
Sales Altra Industrial
2003
164,401
32,429
(1)
Mr. Hurt was paid a signing bonus of $146,000 during 2005.
(2)
Mr. Christenson was paid a signing bonus of $120,000 during
2005.
(3)
Mr. Wall was paid a signing bonus of $10,000 during 2005.
(4)
Value at time of grant. The aggregate restricted stock holdings
of Mr. Hurt at the end of 2005 were 458,233 shares
with a value of $97,500. Restricted stock grants vest in five
equal annual installments and include the right to receive
dividends on such stock when declared by the board.
(5)
Value at time of grant. The aggregate restricted stock holdings
of Mr. Christenson at the end of 2005 were
390,000 shares with a value of $78,000. Restricted stock
grants vest in five equal annual installments and include the
right to receive dividends on such stock when declared by the
board.
(6)
Value at time of grant. The aggregate restricted stock holdings
of Mr. Wall at the end of 2005 were 195,000 shares
with a value of $39,000. Restricted stock grants vest in five
equal annual installments and include the right to receive
dividends on such stock when declared by the board.
(7)
Value at time of grant. The aggregate restricted stock holdings
of Mr. Novotny at the end of 2005 was 97,500 shares
with a value of $19,500. Restricted stock grants vest in five
equal annual installments and include the right to receive
dividends on such stock when declared by the board.
(8)
Value at time of grant. The aggregate restricted stock holdings
of Mr. Ferris at the end of 2005 was 97,500 shares
with a value of $19,500. Restricted stock grants vest in five
equal annual installments and include the right to receive
dividends on such stock when declared by the board.
(9)
Represents our 401k contribution on the officers behalf.
(10)
Mr. Christenson was reimbursed $161,534 in 2005 for costs
related to his relocation and we made a $12,600 401k
contribution on his behalf.
(11)
Mr. Wall was reimbursed $38,545 in 2005 for costs related
to his relocation and we made a $12,600 401k contribution on his
behalf.
Table of Contents
(12)
Valued at time of grant. Restricted stock grants vest in five
equal annual installments and include the right to receive
dividends on such stock when declared by the board.
(13)
Includes a one-time consulting fee for services in connection
with the PTH Acquisition and reimbursement of $32,201 for the
payment of taxes.
(14)
Reflects a success bonus of $134,250 paid in November 2004 by
Colfax Corporation upon the successful completion of the PTH
Acquisition and a $12,268 401k contribution.
(15)
Reflects a success bonus paid in November 2004 by Colfax
Corporation upon the successful completion of the PTH
Acquisition.
Table of Contents
Table of Contents
Table of Contents
73
| accrue payment-in -kind interest at an annual rate of 17%, provided that we may in our sole discretion pay such interest in whole or in part in cash to the extent allowed under the terms of the indenture governing the notes; | |
| mature on November 30, 2019; | |
| are redeemable at our option prior to maturity at specified prepayment premiums; and | |
| are redeemable at the option of the holder at 101% of the principal amount with accrued interest in the event of a change of control of us or any of Altra Industrial. |
74
75
| each person that is a beneficial owner of more than 5% of our outstanding common stock; | |
| each of our named executive officers; | |
| each of our directors and director nominees; | |
| all directors and executive officers as a group; and | |
| each of the selling stockholders. |
Number of Shares | |||||||||||||||||||||||||||||||||
Number of Shares | Number of Shares | Beneficially | |||||||||||||||||||||||||||||||
Beneficially | Beneficially | Owned After | |||||||||||||||||||||||||||||||
Owned Prior to | Owned After the | Number of | Exercise of | ||||||||||||||||||||||||||||||
the Offering(1) | Number of | Offering | Over- | Over-allotment | |||||||||||||||||||||||||||||
Shares | allotment | ||||||||||||||||||||||||||||||||
Name and Address of Beneficial Owner | Number | % | Offered | Number | % | Shares | Number | % | |||||||||||||||||||||||||
5% Stockholders and Selling Stockholders:
|
|||||||||||||||||||||||||||||||||
Genstar Capital Partners III, L.P.(2)
|
12,540,500 | 63.5 | % | 4,824,121 | 7,716,379 | 33.4 | % | 903,247 | 6,813,132 | 29.5 | % | ||||||||||||||||||||||
Caisse de dépôt et placement du Québec(3)
|
3,500,000 | 17.7 | % | 1,346,391 | 2,153,609 | 9.3 | % | 252,093 | 1,901,516 | 8.2 | % | ||||||||||||||||||||||
Other Selling Stockholders:
|
|||||||||||||||||||||||||||||||||
Stargen III, L.P.(4)
|
452,001 | 2.3 | % | 173,877 | 278,124 | 1.2 | % | 32,556 | 245,568 | 1.1 | % | ||||||||||||||||||||||
William J. Duff(7)(8)
|
153,000 | * | 15,300 | 137,700 | * | 7,650 | 130,050 | * | |||||||||||||||||||||||||
Donald S. Wierbinski(7)(9)
|
66,500 | * | 6,650 | 59,850 | * | 3,325 | 56,525 | * | |||||||||||||||||||||||||
Thomas Tatarczuch(10)
|
50,000 | * | 5,000 | 45,000 | * | 2,500 | 42,500 | * | |||||||||||||||||||||||||
Mark Stuebe(7)(11)
|
46,500 | * | 4,650 | 41,850 | * | 2,325 | 39,525 | * | |||||||||||||||||||||||||
David Zietlow(7)(12)
|
39,000 | * | 3,900 | 35,100 | * | 1,950 | 33,150 | * | |||||||||||||||||||||||||
Lee Hess(13)
|
25,000 | * | 2,500 | 22,500 | * | 1,250 | 21,250 | * | |||||||||||||||||||||||||
Thomas Hunt(14)
|
25,000 | * | 2,500 | 22,500 | * | 1,250 | 21,250 | * | |||||||||||||||||||||||||
Virginia Christenson(15)
|
12,500 | * | 1,250 | 11,250 | * | 625 | 10,625 | * | |||||||||||||||||||||||||
Executive Officers and Directors:
|
|||||||||||||||||||||||||||||||||
Michael L. Hurt(7)(16)
|
941,399 | 4.8 | % | 94,140 | 847,259 | 3.7 | % | 141,210 | 706,049 | 3.1 | % | ||||||||||||||||||||||
Carl Christenson(7)(17)
|
631,357 | 3.2 | % | 63,136 | 568,221 | 2.5 | % | 31,568 | 536,653 | 2.3 | % | ||||||||||||||||||||||
David Wall(7)(18)
|
245,000 | 1.2 | % | 24,500 | 220,500 | * | 12,250 | 208,250 | * | ||||||||||||||||||||||||
Edward L. Novotny(7)(19)
|
140,000 | * | 14,000 | 126,000 | * | 7,000 | 119,000 | * | |||||||||||||||||||||||||
Craig Schuele(7)(20)
|
122,500 | * | 12,250 | 110,250 | * | 6,125 | 104,125 | * | |||||||||||||||||||||||||
Gerald Ferris(7)(21)
|
122,500 | * | 12,250 | 110,250 | * | 6,125 | 104,125 | * | |||||||||||||||||||||||||
Timothy McGowan(7)(22)
|
34,250 | * | 3,425 | 30,825 | * | 1,713 | 29,112 | * | |||||||||||||||||||||||||
Jean-Pierre L. Conte(2)
|
12,992,501 | 65.8 | % | 4,997,998 | 7,994,503 | 34.6 | % | 935,803 | 7,058,700 | 30.6 | % | ||||||||||||||||||||||
Richard D. Paterson(2)
|
12,992,501 | 65.8 | % | 4,997,998 | 7,994,503 | 34.6 | % | 935,803 | 7,058,700 | 30.6 | % | ||||||||||||||||||||||
Darren J. Gold(5)
|
| | | | | | | | |||||||||||||||||||||||||
Frank Bauchiero(5)(6)(7)
|
409,125 | 2.1 | % | 40,913 | 368,212 | 1.6 | % | 61,369 | 306,843 | 1.3 | % | ||||||||||||||||||||||
Larry McPherson(7)(23)
|
159,125 | * | 15,913 | 143,212 | * | 23,869 | 119,343 | * | |||||||||||||||||||||||||
All directors and executive officers as a group
|
15,797,757 | 80.0 | % | 5,278,525 | 10,519,232 | 45.6 | % | 1,227,032 | 9,292,200 | 40.2 | % |
76
* | Less than one percent (1%). |
(1) | Number of shares of common stock listed gives effect to the automatic conversion of shares of our preferred stock into shares of our common stock on a one share of common stock for every two shares of preferred stock outstanding basis. All shares of our issued and outstanding preferred stock were issued at a price of $1.00 per share (equivalent to $2.00 per common share on a converted basis). |
(2) | Genstar Capital exercises investment discretion and control over the shares held by Genstar Capital Partners III, L.P., a Delaware limited partnership (Genstar III), Jean-Pierre L. Conte, the chairman and a managing director of Genstar Capital, and Richard D. Paterson, a managing director of Genstar Capital, may be deemed to share beneficial ownership of the shares shown as beneficially owned by Genstar III. Each of Mr. Conte and Mr. Paterson disclaims such beneficial ownership except to the extent of his pecuniary interest therein. The address of Genstar III is Four Embarcadero Center, Suite 1900, San Francisco, California 94111. On November 30, 2004, Genstar Capital purchased 25,080,999 shares of preferred stock for $25,080,999. |
(3) | CDPQ is a limited partner of Genstar III and its address is 1000 place Jean-Paul-Riopelle, Montreal, Quebec. Luc Houle, Senior Vice President, Investments Manufacturing Sector and Louise Lalonde, Investment Director Manufacturing, exercise voting and investment control over such shares and may be deemed to beneficially own the shares. Mr. Houle and Ms. Lalonde disclaim beneficial ownership of all such shares. On November 30, 2004, CDPQ purchased 7,000,000 shares of preferred stock for $7,000,000. |
(4) | Genstar Capital exercises investment discretion and control over the shares held by Stargen III, L.P., a Delaware limited partnership, Jean-Pierre L. Conte, the chairman and a managing director of Genstar Capital, and Richard D. Paterson, a managing director of Genstar Capital, may be deemed to share beneficial ownership of the shares shown as beneficially owned by Stargen III, L.P. Each of Mr. Conte and Mr. Paterson disclaims such beneficial ownership except to the extent of his pecuniary interest therein. The address of Stargen III, L.P. is Four Embarcadero Center, Suite 1900, San Francisco, California 94111. On November 30, 2004, Stargen III, L.P. purchased 904,001 shares of preferred stock for $904,001. |
(5) | Mr. Bauchiero is a Strategic Advisor and Mr. Gold is a Principal of Genstar III. Mr. Bauchiero and Mr. Gold do not directly or indirectly have or share voting or investment power or the ability to influence voting or investment power over the shares shown as beneficially owned by Genstar III. |
(6) | Includes 375,000 shares of stock held by Frank Bauchiero MKC Worldwide. On January 6, 2005, Frank Bauchiero MKC Worldwide purchased 750,000 shares of preferred stock for $750,000. Mr. Bauchiero received a grant of 34,125 shares of restricted common stock on January 6, 2005. |
(7) | Includes restricted common stock (par value $0.001 per share) granted pursuant to our equity incentive plan for services rendered. |
(8) | On November 30, 2004, Mr. Duff received a grant of 78,000 shares of restricted common stock. On November 30, 2004, Mr. Duff purchased 150,000 shares of preferred stock for $150,000. |
(9) | On November 30, 2004, Mr. Wierbinski received a grant of 39,000 shares of restricted common stock. On November 30, 2004, Mr. Wierbinksi purchased 55,000 shares of preferred stock for $55,000. |
(10) | On November 30, 2004, Mr. Tatarczuch purchased 100,000 shares of preferred stock for $100,000. |
(11) | On January 6, 2005, Mr. Stuebe received a grant of 39,000 shares of restricted common stock. On January 6, 2005, Mr. Stuebe purchased 15,000 shares of preferred stock for $15,000. |
(12) | On January 6, 2005, Mr. Zietlow received a grant of 39,000 shares of restricted common stock. |
(13) | On January 6, 2005, Mr. Hess purchased 50,000 shares of preferred stock for $50,000. |
(14) | On January 6, 2005, Mr. Hunt purchased 50,000 shares of preferred stock for $50,000. |
77
(15) | In September 2006, Mrs. Christenson acquired 25,000 shares of preferred stock from Mr. Christenson. |
(16) | Mr. Hurt received grants of 146,335, 341,165 and 203,899 shares of restricted common stock on November 30, 2004, January 6, 2005 and August 30, 2006, respectively. On November 30, 2004, Mr. Hurt purchased 500,000 shares of preferred stock for $500,000. |
(17) | Mr. Christenson received grants of 390,000 and 103,857 shares of restricted common stock on January 25, 2005 and August 30, 2006, respectively. On May 6, 2005, Mr. Christenson purchased 300,000 shares of preferred stock for $300,000. |
(18) | Mr. Wall received a grant of 195,000 shares of restricted common stock on January 25, 2005. On November 18, 2005, Mr. Wall purchased 100,000 shares of preferred stock for $100,000. |
(19) | Mr. Novotny received a grant of 97,500 shares of restricted common stock on January 6, 2005. On January 6, 2005, Mr. Novotny purchased 85,000 shares of preferred stock for $85,000. |
(20) | Mr. Schuele received a grant of 97,500 shares of restricted common stock on January 6, 2005. On January 6, 2005, Mr. Schuele purchased 50,000 shares of preferred stock for $50,000. |
(21) | Mr. Ferris received a grant of 97,500 shares of restricted common stock on January 6, 2005. On January 6, 2005, Mr. Ferris purchased 50,000 shares of preferred stock for $50,000. |
(22) | Mr. McGowan received a grant of 29,250 shares of restricted common stock on January 6, 2005. On January 6, 2005, Mr. McGowan purchased 10,000 shares of preferred stock for $10,000. |
(23) | Mr. McPherson received a grant of 34,125 shares of restricted common stock on January 6, 2005. On January 6, 2005, Mr. McPherson purchased 250,000 shares of preferred stock for $250,000. |
78
79
| the corporation has elected in its certificate of incorporation not to be governed by Section 203; | |
| the business combination or the transaction which resulted in the stockholder becoming an interested stockholder was approved by the board of directors of the corporation before such stockholder became an interested stockholder; | |
| upon consummation of the transaction that made such stockholder an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the commencement of the transaction excluding voting stock owned by directors who are also officers or held in employee benefit plans in which the employees do not have a confidential right to tender stock held by the plan in a tender or exchange offer; or | |
| the business combination is approved by the board of directors of the corporation and authorized at a meeting by two-thirds of the voting stock which the interested stockholder did not own. |
80
| any breach of their duty of loyalty to the corporation or its stockholders; | |
| acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; | |
| unlawful payments of dividends or unlawful stock repurchases or redemptions; or | |
| any transaction from which the director derived an improper personal benefit. |
| the officer or director did not act in good faith and in a manner reasonably believed to be in, or not opposed to, our best interests; or | |
| with respect to any criminal action or proceeding, the officer or director had reasonable cause to believe his conduct was unlawful. |
81
82
| incur additional indebtedness; | |
| repay subordinated indebtedness prior to stated maturities; | |
| pay dividends on or redeem or repurchase stock or make other distributions; | |
| issue capital stock; | |
| make investments or acquisitions; | |
| sell certain assets or merge with or into other companies; | |
| restrict dividends, distributions or other payments from our subsidiaries; | |
| sell stock in our subsidiaries; | |
| create liens; | |
| enter into certain transactions with stockholders and affiliates; and | |
| otherwise conduct necessary corporate activities. |
83
| incur additional indebtedness; | |
| repay subordinated indebtedness prior to stated maturities; | |
| pay dividends on or redeem or repurchase stock or make other distributions; | |
| sell certain assets or merge with or into other companies; | |
| restrict dividends, distributions or other payments from our subsidiaries; | |
| create liens; | |
| enter into certain transactions with stockholders and affiliates; and | |
| otherwise conduct necessary corporate activities. |
84
| 1% of the number of shares of our common stock then outstanding, which will equal approximately 230,876 shares immediately after the offering; or | |
| the average weekly trading volume of our common stock on the NASDAQ during the four calendar weeks preceding the filing of a notice on Form 144 with respect to that sale. |
85
| banks, insurance companies, regulated investment companies or other financial institutions; | |
| persons subject to the alternative minimum tax; | |
| tax-exempt organizations; | |
| dealers in securities, commodities or currencies; | |
| traders in securities that elect to use a mark-to -market method of accounting for their securities holdings; | |
| partnerships or other pass-through entities or investors in such entities; | |
| controlled foreign corporations, passive foreign corporations, and corporations that accumulate earnings to avoid U.S. federal income tax; | |
| U.S. expatriates or former long-term residents of the United States; | |
| persons who hold our common stock as a position in a hedging transaction, straddle, conversion transaction or other risk reduction or integrated transaction; or | |
| persons deemed to sell our common stock under the constructive sale provisions of the Code. |
86
| For purposes of this discussion, you are a non-U.S. holder if you are a beneficial owner of our common stock that, for U.S. federal income tax purposes, is not a U.S. person. For purposes of this discussion, a U.S. person is: | |
| an individual who is a citizen or resident of the United States, including an alien individual who is a lawful permanent resident of the United States or who meets the substantial presence test under Section 7701(b) of the Code; | |
| a corporation or other entity taxable as a corporation for U.S. federal tax purposes created or organized in the United States or under the laws of the United States or of any state therein or the District of Columbia; | |
| an estate whose income is subject to U.S. federal income tax regardless of its source; or | |
| a trust (1) whose administration is subject to the primary supervision of a U.S. court and of which one or more U.S. persons has the authority to control all substantial decisions of the trust or (2) that has made a valid election to be treated as a U.S. person. |
87
| the gain is effectively connected with your conduct of a U.S. trade or business (and, if required by an applicable tax treaty, is attributable to a U.S. permanent establishment maintained by you); | |
| you are an individual who is present in the United States for a period (or periods) aggregating 183 days or more during the calendar year in which the sale or disposition occurs and certain other conditions are met; or | |
| our common stock constitutes a U.S. real property interest by reason of our status as a United States real property holding corporation for U.S. federal income tax purposes (a USRPHC) at any time within the shorter of the five-year period preceding the disposition or your holding period for our common stock. |
88
89
Number | |||||
of Shares | |||||
Underwriter | |||||
Merrill Lynch, Pierce, Fenner & Smith
Incorporated |
|||||
Jefferies & Company, Inc.
|
|||||
Robert W. Baird & Co. Incorporated
|
|||||
Wachovia Capital Markets, LLC
|
|||||
Total
|
|||||
Per Share | Without Option | With Option | ||||||||||
Public offering price
|
$ | $ | $ | |||||||||
Underwriting discount
|
$ | $ | $ | |||||||||
Proceeds, before expenses, to Altra Holdings, Inc.
|
$ | $ | $ | |||||||||
Proceeds, before expenses, to the selling
stockholders |
$ | $ | $ |
90
| offer, pledge, sell or contract to sell any common stock, | |
| sell any option or contract to purchase any common stock; | |
| purchase any option or contract to sell any common stock; | |
| grant any option, right or warrant for the sale of any common stock; | |
| lend or otherwise dispose of or transfer any common stock; | |
| request or demand that we file a registration statement related to the common stock; or | |
| enter into any swap or other agreement that transfers; in whole or in part, the economic consequence of ownership of any common stock whether any such swap or transaction is to be settled by delivery of shares or other securities, in cash or otherwise. |
91
| the valuation multiples of publicly traded companies that the underwriters believe to be comparable to us; | |
| our financial information; | |
| the history of, and the prospects for, our company and the industry in which we compete; | |
| an assessment of our management; its past and present operations, and the prospects for, and timing of, our future revenues; | |
| the present state of our development; and | |
| the above factors in relation to market values and various valuation measures of other companies engaged in activities similar to ours. |
92
93
94
Page No. | |||||
Altra Holdings, Inc. (the Company)
|
|||||
Audited Financial Statements:
|
|||||
F-2 | |||||
F-3 | |||||
F-4 | |||||
F-5 | |||||
F-6 | |||||
F-7 | |||||
Unaudited Interim Financial Statements:
|
|||||
F-36 | |||||
F-37 | |||||
F-38 | |||||
F-39 | |||||
Hay Hall Holdings Limited
|
|||||
Audited Financial Statements:
|
|||||
F-53 | |||||
F-54 | |||||
F-55 | |||||
F-56 | |||||
F-57 | |||||
F-58 | |||||
F-59 |
F-1
F-2
Pro Forma | |||||||||||||
December 31, | December 31, | ||||||||||||
2005 | 2005 | 2004 | |||||||||||
(unaudited) | |||||||||||||
ASSETS
|
|||||||||||||
Current assets:
|
|||||||||||||
Cash and cash equivalents
|
$ | 10,060 | $ | 10,060 | $ | 4,729 | |||||||
Trade receivables, less allowance for doubtful accounts of
$1,797 and $1,424
|
46,441 | 46,441 | 45,969 | ||||||||||
Inventories, less allowance for obsolete materials of $6,843 and
$6,361
|
54,654 | 54,654 | 56,732 | ||||||||||
Deferred income taxes
|
2,779 | 2,779 | 1,145 | ||||||||||
Prepaid expenses and other
|
1,973 | 1,973 | 4,792 | ||||||||||
Total current assets
|
115,907 | 115,907 | 113,367 | ||||||||||
Property, plant and equipment, net
|
66,393 | 66,393 | 68,006 | ||||||||||
Intangible assets, net
|
44,751 | 44,751 | 48,758 | ||||||||||
Goodwill
|
65,345 | 65,345 | 63,145 | ||||||||||
Other assets
|
5,295 | 5,295 | 6,111 | ||||||||||
Total assets
|
$ | 297,691 | $ | 297,691 | $ | 299,387 | |||||||
LIABILITIES AND STOCKHOLDERS EQUITY
|
|||||||||||||
Current liabilities:
|
|||||||||||||
Accounts payable
|
$ | 30,724 | $ | 30,724 | $ | 28,787 | |||||||
Accrued payroll
|
16,016 | 16,016 | 11,661 | ||||||||||
Accruals and other liabilities
|
16,085 | 16,085 | 14,306 | ||||||||||
Deferred income taxes
|
33 | 33 | 129 | ||||||||||
Current portion of long-term debt
|
186 | 186 | 913 | ||||||||||
Total current liabilities
|
63,044 | 63,044 | 55,796 | ||||||||||
Long-term debt, less current portion and net of unaccreted
discount
|
173,574 | 173,574 | 172,938 | ||||||||||
Deferred income taxes
|
7,653 | 7,653 | 9,828 | ||||||||||
Pension liabilities
|
14,368 | 14,368 | 19,534 | ||||||||||
Other post retirement benefits
|
12,500 | 12,500 | 12,203 | ||||||||||
Other long term liabilities
|
1,601 | 1,601 | | ||||||||||
Commitments and Contingencies
|
| | | ||||||||||
Convertible Preferred Series A stock ($0.001 par
value, 40,000,000 shares authorized, 35,500,000 and
35,100,000 shares issued and outstanding, respectively)
|
| 35,500 | 35,100 | ||||||||||
Stockholders equity:
|
|||||||||||||
Common stock ($0.001 par value, 50,000,000 shares
authorized, 105,334 issued and outstanding at December 31,
2005)
|
18 | | | ||||||||||
Additional paid-in capital
|
35,595 | 113 | 54 | ||||||||||
Retained deficit
|
(3,389 | ) | (3,389 | ) | (5,893 | ) | |||||||
Cumulative foreign currency translation adjustment
|
(5,851 | ) | (5,851 | ) | 549 | ||||||||
Minimum pension liability
|
(1,422 | ) | (1,422 | ) | (722 | ) | |||||||
24,951 | 24,951 | 29,088 | |||||||||||
Total liabilities and stockholders equity
|
$ | 297,691 | $ | 297,691 | $ | 299,387 | |||||||
F-3
Altra | ||||||||||||||||||
From | Predecessor (Note 1) | |||||||||||||||||
Inception | ||||||||||||||||||
(December 1, 2004 | 11 Months | |||||||||||||||||
Year Ended | Through | Ended | Year Ended | |||||||||||||||
December 31, | December 31, | November 30, | December 31, | |||||||||||||||
2005 | 2004) | 2004 | 2003 | |||||||||||||||
Net sales
|
$ | 363,465 | $ | 28,625 | $ | 275,037 | $ | 266,863 | ||||||||||
Cost of sales
|
271,952 | 23,847 | 209,253 | 207,941 | ||||||||||||||
Gross profit
|
91,513 | 4,778 | 65,784 | 58,922 | ||||||||||||||
Selling, general and administrative expenses
|
61,579 | 8,973 | 45,321 | 49,513 | ||||||||||||||
Research and development expenses
|
4,683 | 378 | 3,947 | 3,455 | ||||||||||||||
Restructuring charge, asset impairment and transition expenses
|
| | 947 | 11,085 | ||||||||||||||
Gain on sale of fixed assets
|
(99 | ) | | (1,300 | ) | | ||||||||||||
Income (loss) from operations
|
25,350 | (4,573 | ) | 16,869 | (5,131 | ) | ||||||||||||
Interest expense, net
|
19,514 | 1,612 | 4,294 | 5,368 | ||||||||||||||
Other non-operating (income) expense, net
|
(17 | ) | | 148 | 465 | |||||||||||||
Income (loss) before income taxes
|
5,853 | (6,185 | ) | 12,427 | (10,964 | ) | ||||||||||||
Provision (benefit) for income taxes
|
3,349 | (292 | ) | 5,532 | (1,658 | ) | ||||||||||||
Net income (loss)
|
2,504 | (5,893 | ) | 6,895 | (9,306 | ) | ||||||||||||
Other comprehensive (loss) income, net of income taxes:
|
||||||||||||||||||
Minimum pension liability adjustment
|
(700 | ) | (722 | ) | (6,031 | ) | 5,418 | |||||||||||
Foreign currency translation adjustment
|
(6,400 | ) | 549 | 478 | 3,917 | |||||||||||||
Other comprehensive (loss) income
|
(7,100 | ) | (173 | ) | (5,553 | ) | 9,335 | |||||||||||
Comprehensive (loss) income
|
$ | (4,596 | ) | $ | (6,066 | ) | $ | 1,342 | $ | 29 | ||||||||
Net Income per share:
|
||||||||||||||||||
Basic
|
$ | 139.11 | $ | | ||||||||||||||
Diluted
|
$ | 0.07 | $ | | ||||||||||||||
Weighted average common shares outstanding:
|
||||||||||||||||||
Basic
|
18 | | ||||||||||||||||
Diluted
|
37,937 | | ||||||||||||||||
Unaudited Pro forma effect of conversion of Series A preferred stock to common stock and effect of two for one reverse common stock split on net income per share: | ||||||||||||||||||
Basic
|
$ | 0.14 | ||||||||||||||||
Diluted
|
$ | 0.14 | ||||||||||||||||
Unaudited Pro forma weighted average common shares outstanding: | ||||||||||||||||||
Basic
|
17,759 | |||||||||||||||||
Diluted
|
18,969 |
F-4
Accumulated | ||||||||||||
Other | Net | |||||||||||
Invested | Comprehensive | Invested | ||||||||||
Capital | Loss | Capital | ||||||||||
For the Predecessor
|
||||||||||||
Balance at December 31, 2002
|
$ | 33,142 | $ | (42,560 | ) | $ | (9,418 | ) | ||||
Net loss
|
(9,306 | ) | | (9,306 | ) | |||||||
Contribution from affiliates
|
6,385 | | 6,385 | |||||||||
Other comprehensive income, net of $4,251 tax benefit
|
| 9,335 | 9,335 | |||||||||
Balance at December 31, 2003
|
30,221 | (33,225 | ) | (3,004 | ) | |||||||
Net income
|
6,895 | | 6,895 | |||||||||
Contribution from affiliates
|
7,922 | | 7,922 | |||||||||
Other comprehensive income, net of $3,697 tax benefit
|
| (5,553 | ) | (5,553 | ) | |||||||
Balance at November 30, 2004
|
$ | 45,038 | $ | (38,778 | ) | $ | 6,260 |
Accumulated | ||||||||||||||||||||||||||||||||
Convertible | Additional | Other | ||||||||||||||||||||||||||||||
Preferred | Common | Paid-In | Retained | Comprehensive | ||||||||||||||||||||||||||||
Stock | Shares | Stock | Shares | Capital | Deficit | Loss | Total | |||||||||||||||||||||||||
For the Company
|
||||||||||||||||||||||||||||||||
Initial capital contribution
|
$ | 26,334 | 26,334 | $ | | $ | | $ | | $ | | $ | 26,334 | |||||||||||||||||||
Equity issued related to acquisition
|
8,766 | 8,766 | | | 54 | | | 8,820 | ||||||||||||||||||||||||
Net loss
|
| | | | | (5,893 | ) | | (5,893 | ) | ||||||||||||||||||||||
Other comprehensive loss
|
| | | | | | (173 | ) | (173 | ) | ||||||||||||||||||||||
Balance at December 31, 2004
|
35,100 | 35,100 | | | 54 | (5,893 | ) | (173 | ) | 29,088 | ||||||||||||||||||||||
Issuance of preferred stock
|
400 | 400 | | | | | | 400 | ||||||||||||||||||||||||
Amortization of restricted stock grants
|
| | | 105 | 59 | | | 59 | ||||||||||||||||||||||||
Net income
|
| | | | | 2,504 | | 2,504 | ||||||||||||||||||||||||
Other comprehensive loss, net of $1,938 tax benefit
|
| | | | | | (7,100 | ) | (7,100 | ) | ||||||||||||||||||||||
Balance at December 31, 2005
|
$ | 35,500 | 35,500 | $ | | 105 | $ | 113 | $ | (3,389 | ) | $ | (7,273 | ) | $ | 24,951 | ||||||||||||||||
F-5
Altra | Predecessor (Note 1) | |||||||||||||||||||
From Inception | ||||||||||||||||||||
(December 1, 2004 | 11 Months | |||||||||||||||||||
Year Ended | Through | Ended | Year Ended | |||||||||||||||||
December 31, | December 31, | November 30, | December 31, | |||||||||||||||||
2005 | 2004) | 2004 | 2003 | |||||||||||||||||
Cash flows from operating activities:
|
||||||||||||||||||||
Net income (loss)
|
$ | 2,504 | $ | (5,893 | ) | $ | 6,895 | $ | (9,306 | ) | ||||||||||
Adjustments to reconcile net income to cash provided by
operating activities:
|
||||||||||||||||||||
Depreciation
|
8,574 | 673 | 6,074 | 8,653 | ||||||||||||||||
Amortization of intangible assets
|
2,959 | 246 | | | ||||||||||||||||
Amortization of deferred loan costs
|
669 | 53 | | 587 | ||||||||||||||||
Accretion of debt discount
|
942 | 79 | | | ||||||||||||||||
Paid-in-kind interest
|
| 198 | | | ||||||||||||||||
Amortization of inventory fair value adjustment
|
1,699 | 1,699 | | | ||||||||||||||||
Amortization of deferred compensation
|
59 | | | | ||||||||||||||||
(Gains) impairments on sale of fixed assets
|
(99 | ) | | (1,300 | ) | 2,126 | ||||||||||||||
Provision (benefit) for deferred taxes
|
225 | (1,031 | ) | 117 | (2,679 | ) | ||||||||||||||
Changes in operating assets and liabilities:
|
||||||||||||||||||||
Trade receivables
|
(2,654 | ) | (324 | ) | (4,197 | ) | (578 | ) | ||||||||||||
Inventories
|
(1,353 | ) | (412 | ) | (6,418 | ) | (2,232 | ) | ||||||||||||
Accounts payable and accrued liabilities
|
(1,788 | ) | 9,402 | 3,734 | (13,842 | ) | ||||||||||||||
Other current assets and liabilities
|
2,226 | (2,126 | ) | 1,477 | (445 | ) | ||||||||||||||
Other operating assets and liabilities
|
(1,940 | ) | 3,059 | (2,778 | ) | 3,427 | ||||||||||||||
Net cash provided by (used in) operating activities
|
12,023 | 5,623 | 3,604 | (14,289 | ) | |||||||||||||||
Cash flows from investing activities:
|
||||||||||||||||||||
Purchases of fixed assets
|
(6,199 | ) | (289 | ) | (3,489 | ) | (5,294 | ) | ||||||||||||
Acquisitions, net of $2,367 of cash acquired in 2004
|
1,607 | (180,112 | ) | | | |||||||||||||||
Payment of additional Kilian purchase price
|
(730 | ) | | | | |||||||||||||||
Proceeds from sale of fixed assets
|
125 | | 4,442 | 3,721 | ||||||||||||||||
Net cash (used in) provided by investing activities
|
(5,197 | ) | (180,401 | ) | 953 | (1,573 | ) | |||||||||||||
Cash flows from financing activities:
|
||||||||||||||||||||
Initial contributed capital
|
| 26,334 | | 5,000 | ||||||||||||||||
Proceeds from issuance of senior subordinated notes
|
| 158,400 | | | ||||||||||||||||
Proceeds from sale of convertible preferred stock
|
400 | | | | ||||||||||||||||
Payments of debt acquired in acquisitions
|
| (12,178 | ) | | (64,242 | ) | ||||||||||||||
Payment of paid-in-kind interest
|
(198 | ) | | | | |||||||||||||||
Proceeds from issuance of subordinated notes
|
| 14,000 | | | ||||||||||||||||
Payment of debt issuance costs
|
(338 | ) | (7,087 | ) | | | ||||||||||||||
Borrowings under revolving credit agreement
|
4,408 | 4,988 | | | ||||||||||||||||
Payments on revolving credit agreement
|
(4,408 | ) | (4,988 | ) | | | ||||||||||||||
Payment of capital leases
|
(835 | ) | (37 | ) | | | ||||||||||||||
Contribution from affiliates
|
| | 7,922 | 1,385 | ||||||||||||||||
Change in affiliate debt
|
| | (14,618 | ) | 70,603 | |||||||||||||||
Net cash (used in) provided by financing activities
|
(971 | ) | 179,432 | (6,696 | ) | 12,746 | ||||||||||||||
Effect of exchange rates on cash
|
(524 | ) | 75 | 159 | 1,065 | |||||||||||||||
Increase (Decrease) in cash and cash equivalents
|
5,331 | 4,729 | (1,980 | ) | (2,051 | ) | ||||||||||||||
Cash and cash equivalents, beginning of period
|
4,729 | | 3,163 | 5,214 | ||||||||||||||||
Cash and cash equivalents, end of period
|
$ | 10,060 | $ | 4,729 | $ | 1,183 | 3,163 | |||||||||||||
Cash paid during the period for:
|
||||||||||||||||||||
Interest
|
$ | 17,458 | $ | | $ | 2,796 | $ | 4,061 | ||||||||||||
Income Taxes
|
$ | 1,761 | $ | | $ | 446 | $ | 1,249 |
F-6
1. | Description of Business and Summary of Significant Accounting Policies |
Basis of Preparation and Description of Business |
Principles of Consolidation |
Pro Forma (unaudited) |
Net Income Per Share |
F-7
Year Ended
December 31,
2005
$
2,504
18
2,419
35,500
37,937
$
139.11
$
0.07
Fair Value of Financial Instruments |
Use of Estimates |
Foreign currency translation |
F-8
Cash and Cash Equivalents |
Trade Receivables |
Inventories |
Property, Plant and Equipment |
Buildings and improvements
|
15 to 45 years | |
Machinery and equipment
|
2 to 15 years |
Intangible Assets |
Goodwill |
F-9
Impairment of Goodwill and Indefinite-Lived Intangible Assets |
Impairment of Long-Lived Assets Other Than Goodwill and Indefinite-Lived Intangible Assets |
Debt Issuance Costs |
Revenue Recognition |
F-10
Shipping and Handling Costs |
Warranty Costs |
Self-Insurance |
Research and Development |
Advertising |
Stock-Based Compensation |
Income Taxes |
F-11
2. | Recent Accounting Pronouncements |
F-12
3. | Acquisitions |
Predecessor | Kilian | Total | |||||||||||
Total purchase price, including closing costs of approximately
$2.6 million
|
$ | 181,019 | $ | 9,594 | $ | 190,613 | |||||||
Cash and cash equivalents
|
1,183 | 1,184 | 2,367 | ||||||||||
Trade receivables
|
39,233 | 6,096 | 45,329 | ||||||||||
Inventories
|
52,761 | 5,108 | 57,869 | ||||||||||
Prepaid expenses and other
|
4,770 | 207 | 4,977 | ||||||||||
Property, plant and equipment
|
59,320 | 9,111 | 68,431 | ||||||||||
Intangible assets
|
49,004 | | 49,004 | ||||||||||
Deferred income taxes long term
|
| 104 | 104 | ||||||||||
Other assets
|
150 | | 150 | ||||||||||
Total assets acquired
|
206,421 | 21,810 | 228,231 | ||||||||||
Accounts payable, accrued payroll, and accruals and other
current liabilities
|
46,422 | 3,125 | 49,547 | ||||||||||
Bank debt
|
| 12,178 | 12,178 | ||||||||||
Deferred income taxes
|
8,127 | | 8,127 | ||||||||||
Pensions, other post retirement benefits and other liabilities
|
34,166 | | 34,166 | ||||||||||
Total liabilities assumed
|
88,715 | 15,303 | 104,018 | ||||||||||
Net assets acquired
|
117,706 | 6,507 | 124,213 | ||||||||||
Excess purchase price over the fair value of net assets acquired
|
$ | 63,313 | $ | 3,087 | $ | 66,400 | |||||||
F-13
Predecessor
Kilian
Total
$
27,802
$
$
27,802
5,122
5,122
32,924
32,924
16,080
16,080
$
49,004
$
$
49,004
(Pro forma, unaudited, in thousands) | 2004 | 2003 | ||||||
Total Revenues
|
$ | 343,308 | $ | 305,513 | ||||
Net loss
|
(672 | ) | (19,769 | ) |
4. | Inventories |
2005 | 2004 | |||||||
Raw materials
|
$ | 22,512 | $ | 29,219 | ||||
Work in process
|
13,876 | 12,636 | ||||||
Finished goods
|
25,109 | 21,238 | ||||||
61,497 | 63,093 | |||||||
Less Allowance for excess, slow-moving and obsolete
inventory
|
(6,843 | ) | (6,361 | ) | ||||
$ | 54,654 | $ | 56,732 | |||||
F-14
5.
Property, Plant and Equipment
2005
2004
$
7,892
$
5,848
16,500
14,597
50,402
48,234
74,794
68,679
(8,401
)
(673
)
$
66,393
$
68,006
6. | Goodwill and Intangible Assets |
Goodwill
|
|||||
Balance December 31, 2004
|
$ | 63,145 | |||
Adjustments, net
|
3,255 | ||||
Impact of changes in foreign currency
|
(1,055 | ) | |||
Balance December 31, 2005
|
$ | 65,345 | |||
December 31, 2005 | December 31, 2004 | ||||||||||||||||
Accumulated | Accumulated | ||||||||||||||||
Other Intangibles | Cost | Amortization | Cost | Amortization | |||||||||||||
Intangible assets not subject to amortization
|
|||||||||||||||||
Tradenames and trademarks
|
$ | 16,080 | $ | | $ | 16,080 | $ | | |||||||||
Intangible assets subject to amortization:
|
|||||||||||||||||
Customer relationships
|
27,802 | 2,515 | 27,802 | 193 | |||||||||||||
Product technology and patents
|
5,122 | 690 | 5,122 | 53 | |||||||||||||
Impact of changes in foreign currency
|
(1,048 | ) | | | | ||||||||||||
Total intangible assets
|
$ | 47,956 | $ | 3,205 | $ | 49,004 | $ | 246 | |||||||||
F-15
7.
Warranty Costs
December 1, 2004
Predecessor
Year Ended
Through
11 Months Ended
December 31,
December 31,
November 30,
2005
2004
2004
$
1,528
$
1,524
$
1,300
1,265
94
1,093
(917
)
(90
)
(869
)
$
1,876
$
1,528
$
1,524
8. | Income Taxes |
Predecessor (Note 1) | |||||||||||||||||
December 1, | |||||||||||||||||
2004 | 11 Months | ||||||||||||||||
Through | Ended | Year Ended | |||||||||||||||
December 31, | December 31, | November 30, | December 31, | ||||||||||||||
2005 | 2004 | 2004 | 2003 | ||||||||||||||
Domestic
|
$ | 2,127 | $ | (6,539 | ) | $ | 9,125 | $ | (9,189 | ) | |||||||
Foreign
|
3,726 | 354 | 3,302 | (1,775 | ) | ||||||||||||
$ | 5,853 | $ | (6,185 | ) | $ | 12,427 | $ | (10,964 | ) | ||||||||
Predecessor (Note 1) | ||||||||||||||||||
December 1, | ||||||||||||||||||
2004 | 11 Months | |||||||||||||||||
Through | Ended | Year Ended | ||||||||||||||||
December 31, | December 31, | November 30, | December 31, | |||||||||||||||
2005 | 2004 | 2004 | 2003 | |||||||||||||||
Current:
|
||||||||||||||||||
Federal
|
$ | 1,086 | $ | (71 | ) | $ | 3,851 | $ | 434 | |||||||||
Foreign and State
|
2,038 | 810 | 1,564 | 587 | ||||||||||||||
3,124 | 739 | 5,415 | 1,021 | |||||||||||||||
Deferred:
|
||||||||||||||||||
Federal
|
509 | (564 | ) | 98 | (1,707 | ) | ||||||||||||
Foreign and state
|
(284 | ) | (467 | ) | 19 | (972 | ) | |||||||||||
225 | (1,031 | ) | 117 | (2,679 | ) | |||||||||||||
Provision (benefit) for income taxes
|
$ | 3,349 | $ | (292 | ) | $ | 5,532 | $ | (1,658 | ) | ||||||||
F-16
Predecessor (Note 1)
December 1,
2004
11 Months
Through
Ended
Year Ended
December 31,
December 31,
November 30,
December 31,
2005
2004
2004
2003
$
2,049
$
(2,165
)
$
4,371
$
(3,749
)
373
(67
)
366
(209
)
(5,927
)
2,011
895
7,153
313
26
614
(97
)
(100
)
1,074
$
3,349
$
(292
)
$
5,532
$
(1,658
)
2005 | 2004 | ||||||||
Deferred tax assets:
|
|||||||||
Post-retirement obligations
|
12,050 | $ | 10,580 | ||||||
Expenses not currently deductible
|
8,657 | 8,575 | |||||||
Net operating loss carryover
|
1,740 | 1,997 | |||||||
Other
|
883 | 842 | |||||||
Total deferred tax assets
|
23,330 | 21,994 | |||||||
Valuation allowance for deferred tax assets
|
(16,389 | ) | (18,374 | ) | |||||
Net deferred tax assets
|
6,941 | 3,620 | |||||||
Deferred tax liabilities:
|
|||||||||
Property, plant and equipment
|
6,264 | 4,010 | |||||||
Intangible assets
|
5,278 | 7,638 | |||||||
Other
|
306 | 784 | |||||||
Total deferred tax liabilities
|
11,848 | 12,432 | |||||||
Net deferred tax liabilities
|
$ | (4,907 | ) | $ | (8,812 | ) | |||
F-17
9. | Pension and Other Employee Benefits |
Defined Benefit (Pension) and Postretirement Benefit Plans |
F-18
Pension Benefits
Postretirement Benefits
From
Predecessor
From
Predecessor
Inception
(Note 1) 11
Inception
(Note 1) 11
(December 1,
Months
(December 1,
Months
Year Ended
2004) Through
Ended
Year Ended
2004) Through
Ended
December 31,
December 31,
November 30,
December 31,
December 31,
November 30,
2005
2004
2004
2005
2004
2004
$
24,706
$
$
149,338
$
12,570
$
$
30,903
23,750
12,040
591
35
530
295
30
269
1,362
112
8,352
549
59
1,654
55
440
(2,088
)
1,610
687
6,757
(218
)
441
(2,199
)
(424
)
144
125
(203
)
(22
)
(10,541
)
(125
)
(1,651
)
$
27,697
$
24,706
$
155,001
$
10,983
$
12,570
$
28,976
$
4,647
$
$
111,287
$
$
$
4,647
309
3,979
961
22
5,055
1,651
(85
)
(22
)
(10,541
)
(1,651
)
$
5,832
$
4,647
$
109,780
$
$
$
$
(21,865
)
$
(20,059
)
$
(45,221
)
$
(10,983
)
$
(12,570
)
$
(28,976
)
2,390
722
58,494
162
367
1,666
49
223
(1,679
)
(28
)
$
(19,426
)
$
(19,337
)
$
13,496
$
(12,500
)
$
(12,203
)
$
(27,338
)
$
(21,865
)
$
(20,059
)
$
(45,343
)
$
(12,500
)
$
(12,203
)
$
(27,338
)
49
223
2,390
722
58,616
$
(19,426
)
$
(19,337
)
$
13,496
$
(12,500
)
$
(12,203
)
$
(27,338
)
F-19
Pension
Postretirement
Benefits
Benefits
2005
2004
2005
2004
5.5
%
5.8
%
5.5
%
5.8
%
N/A
N/A
N/A
N/A
Pension Benefits | Postretirement Benefits | |||||||||||||||||||||||||||||||||
Predecessor (Note 1) | Predecessor (Note 1) | |||||||||||||||||||||||||||||||||
From | From | |||||||||||||||||||||||||||||||||
Inception | Inception | |||||||||||||||||||||||||||||||||
(December 1, | (December 1, | |||||||||||||||||||||||||||||||||
2004) | 11 Months | 2004) | 11 Months | |||||||||||||||||||||||||||||||
Year Ended | Through | Ended | Year Ended | Year Ended | Through | Ended | Year Ended | |||||||||||||||||||||||||||
December 31, | December 31, | November 30, | December 31, | December 31, | December 31, | November 30, | December 31, | |||||||||||||||||||||||||||
2005 | 2004 | 2004 | 2003 | 2005 | 2004 | 2004 | 2003 | |||||||||||||||||||||||||||
Service cost
|
$ | 591 | $ | 35 | $ | 530 | $ | 650 | $ | 295 | $ | 30 | $ | 269 | $ | 390 | ||||||||||||||||||
Interest cost
|
1,362 | 112 | 8,352 | 9,211 | 549 | 59 | 1,654 | 1,876 | ||||||||||||||||||||||||||
Recognized net actuarial loss
|
| | 2,783 | 23 | | | 183 | | ||||||||||||||||||||||||||
Expected return on plan assets
|
(431 | ) | (31 | ) | (9,747 | ) | (10,971 | ) | | | | | ||||||||||||||||||||||
Amortization
|
72 | | 14 | 1,266 | (423 | ) | | (19 | ) | 232 | ||||||||||||||||||||||||
Net periodic benefit cost
|
$ | 1,594 | $ | 116 | $ | 1,932 | $ | 179 | $ | 421 | $ | 89 | $ | 2,087 | $ | 2,498 | ||||||||||||||||||
Pension Benefits | Postretirement Benefits | |||||||||||||||||||||||||||||||||
Predecessor (Note 1) | Predecessor (Note 1) | |||||||||||||||||||||||||||||||||
From | From | |||||||||||||||||||||||||||||||||
Inception | Inception | |||||||||||||||||||||||||||||||||
(December 1, | (December 1, | |||||||||||||||||||||||||||||||||
2004) | 11 Months | 2004) | 11 Months | |||||||||||||||||||||||||||||||
Year Ended | Through | Ended | Year Ended | Year Ended | Through | Ended | Year Ended | |||||||||||||||||||||||||||
December 31, | December 31, | November 30, | December 31, | December 31, | December 31, | November 30, | December 31, | |||||||||||||||||||||||||||
2005 | 2004 | 2004 | 2003 | 2005 | 2004 | 2004 | 2003 | |||||||||||||||||||||||||||
Discount rate
|
5.5 | % | 6.0 | % | 6.2 | % | 7.2 | % | 5.5 | % | 6.0 | % | 6.3 | % | 6.8 | % | ||||||||||||||||||
Expected return on plan assets
|
8.5 | % | 8.5 | % | 8.5 | % | 9.0 | % | N/A | N/A | N/A | N/A | ||||||||||||||||||||||
Compensation rate increase
|
N/A | N/A | N/A | N/A | N/A | N/A | N/A | N/A |
F-20
1 Percentage-
1 Percentage-
Point
Point
Increase
Decrease
$
122
$
(101
)
1,453
(1,378
)
Allocation Percentage of | ||||||||||||
Plan Assets at Year End | ||||||||||||
2005 | 2005 | 2004 | ||||||||||
Asset Category | Actual | Target | Actual | |||||||||
Equity securities
|
67 | % | 65 | % | (i | ) | ||||||
Fixed income securities
|
33 | % | 35 | % | (i | ) |
(i) | The assets for Altra Industrials funded retirement plan at the end of 2004 were held by the Predecessor, awaiting transfer. Once received, they were invested in a manner consistent with the 2005 target allocation. |
Expected cash flows |
Pension | Postretirement | |||||||||||
Benefits | Benefits | |||||||||||
Expected benefit payments (from plan assets)
|
2006 | 446 | 208 | |||||||||
2007 | 633 | 296 | ||||||||||
2008 | 818 | 394 | ||||||||||
2009 | 1,035 | 499 | ||||||||||
2010 | 1,212 | 618 | ||||||||||
2011-2015 | 8,577 | 4,203 |
F-21
Defined Contribution Plans |
10. | Long-Term Debt |
Revolving Credit Agreement |
F-22
9% Senior Secured Notes |
Subordinated Notes |
F-23
Predecessor Debt |
Capital Leases (see also Note 16) |
11. | Convertible Preferred Stock |
Dividends |
Liquidation |
F-24
Redemption |
Conversion |
Voting |
Protective Provision |
12. | Stockholders Equity |
Amended and Restated Stockholders Agreement |
Registration Rights Agreement |
F-25
Restricted Common Stock |
| Historical and expected future earnings performance | |
| The liquidation preferences and dividend rights of the preferred stock | |
| Milestones achieved by the company | |
| Marketplace and major competition | |
| Market barriers to entry | |
| The Companys workforce and related skills | |
| Customer and vendor characteristics | |
| Strategic relationships with suppliers | |
| Risk factors and uncertainties facing the Company |
F-26
Predecessor |
13. | Related-Party Transactions |
Kilian Acquisition |
Management Agreement |
Subordinated Notes |
Transition Services Agreement |
F-27
Predecessor Related Party Transactions |
14. | Concentrations of Credit, Business Risks and Workforce |
F-28
Net Sales
Predecessor (Note 1)
December 1,
2004
11 Months
Property, Plant and Equipment
Year Ended
Through
Ended
Year Ended
December 31,
December 31,
November 30,
December 31,
December 31,
December 31,
2005
2004
2004
2003
2005
2004
$
288,883
$
23,071
$
207,731
$
198,244
$
47,587
$
47,284
59,176
4,632
54,141
54,672
16,968
18,760
15,406
922
13,165
13,947
1,838
1,962
$
363,465
$
28,625
$
275,037
$
266,863
$
66,393
$
68,006
15. | Predecessor Restructuring, Asset Impairment and Transition Expenses |
F-29
11 Months Ended
Year Ended
November 30,
December 31,
2004
2003
$
$
306
2,011
641
9,074
$
947
$
11,085
United States Programs |
European and Asian Programs |
F-30
11 Months
Ended
November 30,
December 31,
2004
2003
$
$
2,011
306
$
306
$
2,011
$
306
$
2,011
11 Months | ||||||||
Ended | ||||||||
November 30, | December 31, | |||||||
2004 | 2003 | |||||||
United States programs:
|
||||||||
Speed reducer product line consolidation
|
$ | | $ | 3,516 | ||||
Electronic clutch brake consolidation
|
641 | 2,203 | ||||||
Sprag clutch consolidation
|
| 24 | ||||||
Heavy duty clutch consolidation
|
| 516 | ||||||
Administrative streamlining
|
| 592 | ||||||
Total United States programs
|
$ | 641 | $ | 6,851 | ||||
Europe and Asia electronic clutch brake consolidation
|
| 2,223 | ||||||
Total transition expense
|
$ | 641 | $ | 9,074 | ||||
11 Months | ||||||||
Ended | ||||||||
November 30, | December 31, | |||||||
2004 | 2003 | |||||||
Training
|
$ | | $ | 914 | ||||
Relocation
|
| 959 | ||||||
Moving costs
|
| 3,485 | ||||||
Severance
|
| 767 | ||||||
Duplicate employees
|
| 1,689 | ||||||
ERP system integration
|
| 477 | ||||||
Other
|
641 | 783 | ||||||
Total transition expense
|
$ | 641 | $ | 9,074 | ||||
F-31
Combined,
Period from
11 Months
January 1, 2003
Ended
Year Ended
Through
November 30,
December 31,
November 30,
2004
2003
2004
$
331
$
583
$
914
711
908
1,619
89
103
192
158
416
574
8
284
292
$
1,297
$
2,294
$
3,591
288
2,553
2,841
$
1,585
$
4,847
$
6,432
641
9,074
9,715
$
2,226
$
13,921
$
16,147
11 Months Ended | ||||
November 30, | ||||
2004 | ||||
Balance at beginning of period
|
$ | 1,606 | ||
Cash payments
|
(1,585 | ) | ||
Balance at end of period
|
$ | 21 | ||
F-32
16. | Commitments and Contingencies |
Minimum Lease Obligations |
Operating | Capital | ||||||||
Year Ending December 31: | Leases | Leases | |||||||
2006
|
$ | 2,709 | $ | 211 | |||||
2007
|
2,269 | 166 | |||||||
2008
|
1,396 | 6 | |||||||
2009
|
680 | | |||||||
2010
|
513 | | |||||||
Thereafter
|
1,464 | | |||||||
Total lease obligations
|
$ | 9,031 | 383 | ||||||
Less amounts representing interest
|
(44 | ) | |||||||
Present value of minimum capital lease obligations
|
$ | 339 | |||||||
General Litigation |
F-33
17.
Unaudited Quarterly Results of Operations (in thousands):
Year Ending December 31, 2005
Fourth
Third
Second
First
$
89,974
$
85,155
$
93,034
$
95,302
24,928
21,371
23,314
21,900
1,295
204
1,084
(79
)
$
18.50
$
$
N/A
$
0.03
$
0.01
$
0.03
N/A
Predecessor (Note 1)
Period from
Inception
Period from
(December 1)
October 1, 2004
to
to
December 31,
November 30,
Year Ending December 31, 2004
2004
2004
Third
Second
First
$
28,625
$
46,338
$
72,542
$
78,151
$
78,006
4,778
9,687
17,683
18,296
20,118
(5,893
)
(253
)
(1,081
)
2,668
5,561
$
N/A
N/A
N/A
N/A
$
N/A
N/A
N/A
N/A
18. | Subsequent Event (Unaudited) |
F-34
Total purchase price, including closing costs of approximately
$1.7 million
|
$ | 50,981 | |||
Cash and cash equivalents
|
441 | ||||
Trade receivables
|
11,668 | ||||
Inventories
|
16,989 | ||||
Prepaid expenses and other
|
1,442 | ||||
Property, plant and equipment
|
10,509 | ||||
Intangible assets
|
15,900 | ||||
Total assets acquired
|
56,949 | ||||
Accounts payable, accrued payroll, and accruals and other
current liabilities
|
11,862 | ||||
Other liabilities
|
5,647 | ||||
Total liabilities assumed
|
17,509 | ||||
Net assets acquired
|
39,440 | ||||
Excess purchase price over the fair value of net assets acquired
|
$ | 11,541 | |||
Customer relationships
|
$ | 9,064 | |||
Product technology and patents
|
1,589 | ||||
Total intangible assets subject to amortization
|
10,653 | ||||
Trade names and trademarks, not subject to amortization
|
5,247 | ||||
Total intangible assets
|
$ | 15,900 | |||
F-35
F-36
F-37
F-38
F-39
F-40
F-41
F-42
F-43
F-44
F-45
F-46
F-47
F-48
F-49
F-50
F-51
F-52
F-53
F-54
F-55
F-56
F-57
F-58
F-59
F-60
F-61
F-62
F-63
F-64
F-65
F-66
F-67
F-68
F-69
F-70
F-71
F-72
F-73
F-74
F-75
F-76
F-77
II-1
II-2
II-3
II-4
II-5
II-6
II-7
II-8
II-9
II-10
II-11
II-12
II-13
Table of Contents
Nine Months Ended
September 29,
September 30,
2006
2005
(Unaudited)
(Unaudited)
$
347,511
$
273,491
252,959
206,906
94,552
66,585
57,364
45,990
3,807
3,495
(3,838
)
37,219
17,100
19,382
14,647
647
3
17,190
2,450
6,497
1,241
10,693
1,209
3,022
(1,951
)
3,022
(1,951
)
$
13,715
(742
)
$
17.79
$
$
0.28
$
0.03
601
38,324
37,596
$
0.15
$
0.14
18,051
19,162
Table of Contents
Nine Months Ended
September 29,
September 30,
2006
2005
(Unaudited)
(Unaudited)
$
10,693
$
1,209
7,544
6,249
2,767
2,215
955
513
466
707
711
2,278
1,699
439
44
(14
)
(103
)
(3,838
)
1,502
8
(1,945
)
1,887
(1,763
)
2,640
(9,443
)
(2,116
)
159
(2,116
)
343
(931
)
10,850
11,909
(6,133
)
(3,401
)
125
(730
)
(54,302
)
(60,435
)
(4,006
)
57,625
(2,506
)
(198
)
300
(12,500
)
5,057
4,408
(5,057
)
(4,408
)
2,510
(106
)
(724
)
45,023
(622
)
262
(1,716
)
(4,300
)
5,565
10,060
4,729
$
5,760
$
10,294
$
15,084
$
10,410
$
2,160
$
1,383
$
404
$
Table of Contents
1.
Organization and Nature of Operations
2.
Basis of Presentation
3.
Recent Accounting Pronouncements
Table of Contents
4.
Net Income Per Share
Year-to-Date
Year-to Date
Ended
Ended
September 29,
September 30,
2006
2005
$
10,693
$
1,209
601
2,223
2,196
35,500
35,400
38,324
37,596
$
17.79
$
$
0.28
$
0.03
5.
Acquisitions
Table of Contents
$
51,177
441
12,959
16,388
1,099
13,996
13,881
58,764
11,282
3,493
14,775
43,989
7,188
$
6,931
6,950
$
13,881
Table of Contents
Year-to-date
Year-to-date
Ended
Ended
September 29,
September 30,
(Pro Forma, Unaudited, in Thousands)
2006
2005
$
356,844
$
326,362
$
12,292
$
2,505
6.
Cash and Cash Equivalents
Table of Contents
7.
Inventories
September 29,
December 31,
2006
2005
$
28,432
$
22,512
19,038
13,876
35,819
25,109
83,289
61,497
(9,598
)
(6,843
)
$
73,691
$
54,654
8.
Goodwill and Intangible Assets
Goodwill
Cost
$
65,345
7,188
4,231
1,272
$
78,036
September 29, 2006
December 31, 2005
Accumulated
Accumulated
Cost
Amortization
Cost
Amortization
$
23,030
$
$
16,080
$
34,733
4,804
27,802
2,515
5,122
1,168
5,122
690
552
(1,048
)
$
63,437
$
5,972
$
47,956
$
3,205
Table of Contents
9.
Warranty Costs
September 29, 2006
September 30, 2005
$
1,876
$
1,528
1,365
979
1,072
(957
)
$
2,169
$
1,550
10.
Income Taxes
11.
Pension and Other Employee Benefits
Defined Benefit (Pension) and Postretirement Benefit
Plans
Quarter Ended
Pension Benefits
Other Benefits
September 29, 2006
September 30, 2005
September 29, 2006
September 30, 2005
$
66
$
132
$
(40
)
$
34
334
307
(36
)
50
(207
)
(108
)
2
2
(458
)
(302
)
(140
)
(15
)
(3,838
)
$
195
$
333
$
(4,512
)
$
(233
)
Table of Contents
Year-to-Date Ended
Pension Benefits
Other Benefits
September 29, 2006
September 30, 2005
September 29, 2006
September 30, 2005
$
369
$
397
$
128
$
222
1,003
921
263
411
(622
)
(324
)
5
5
(659
)
(302
)
(105
)
(15
)
(3,838
)
$
755
$
999
$
(4,211
)
$
316
11.
Financing Arrangements
Revolving Credit Agreement
Table of Contents
9% Senior Secured Notes
11.25% Senior Notes
Table of Contents
Mortgage
Capital Leases
12.
Convertible Preferred Stock
Dividends
Liquidation
Table of Contents
Redemption
Conversion
Voting
Protective Provision
13.
Stockholders Equity
Amended and Restated Certificate of Incorporation
Registration Rights Agreement
Table of Contents
Restricted Common Stock
Weighted-average
grant date fair
Shares
value
878,114
$
0.10
2,788,329
$
0.10
(351,443
)
$
0.10
(105,334
)
$
0.10
3,209,666
$
0.10
693,511
$
7.19
(557,666
)
$
0.10
3,345,511
$
1.57
Table of Contents
Historical and expected future earnings performance
The liquidation preferences and dividend rights of the preferred
stock
Milestones achieved by the company
Marketplace and major competition
Market barriers to entry
The Companys workforce and related skills
Customer and vendor characteristics
Strategic relationships with suppliers
Risk factors and uncertainties facing the Company
14.
Related-Party Transactions
Kilian Acquisition
Management Agreement
Subordinated Notes
Table of Contents
15.
Concentrations of Credit, Business Risks and Workforce
16.
Geographic Information
Net Sales
Property, Plant
and Equipment
Year-to-
Year-to-Date
Date
Ended
Ended
September 29,
September 30,
September 29,
December 31,
2006
2005
2006
2005
$
250,225
$
207,354
$
49,805
$
47,587
84,812
54,478
29,916
16,968
12,474
11,659
1,790
1,838
$
347,511
$
273,491
$
81,511
$
66,393
Table of Contents
17.
Commitments and Contingencies
General Litigation
Table of Contents
Table of Contents
Year Ended
31 December
Notes
2005
£000
2
39,262
3
(37,924
)
4
1,338
56
5
(1,286
)
107
215
8
(292
)
(77
)
(77
)
Table of Contents
Year Ended
31 December
2005
£000
(77
)
118
(2,148
)
(2,107
)
Table of Contents
Notes
2005
£000
9
2,593
10
6,131
11
19
8,743
12
8,659
13
7,537
2,207
18,403
14
(13,673
)
4,730
13,473
15
513
16
9,185
25
3,573
13,271
18
2,130
19
(1,928
)
20
202
21
13,473
Table of Contents
Notes
2005
£000
11
2,280
14
(150
)
2,130
18
2,130
19
20
2,130
Table of Contents
Year Ended
31 December
Notes
2005
£000
22
2,789
56
(26
)
(1,129
)
(1,099
)
(186
)
(186
)
(680
)
8
(672
)
(288
)
42
(5
)
(251
)
581
(178
)
238
(1,007
)
(947
)
23
(366
)
Table of Contents
1
Accounting policies
a) Basis of accounting
b) Accounting period
c) Basis of
consolidation
d) Goodwill
e) Tangible fixed
assets
2% to
3
1
/
3
% per
annum
Over term of lease
4% to
33
1
/
3
% per
annum
Table of Contents
f) Investments
g) Stocks
h) Taxation
i) Foreign currency
Table of Contents
j) Leases
k) Turnover
l) Pension costs
m) Finance costs
n) Debt
Table of Contents
2
Turnover
2005
£000
12,348
8,471
14,086
4,357
39,262
2005
£000
30,050
700
7,192
1,320
39,262
3
Operating costs less other income
2005
Continuing
Operations
£000
607
54
(14,438
)
(7,317
)
(15,631
)
(1,200
)
(37,924
)
4
Operating profit
2005
£000
1,075
125
71
113
473
Table of Contents
5
Interest payable and similar charges
2005
£000
1,079
26
181
1,286
6
Staff costs
2005
Number
349
199
548
2005
£000
13,969
55
1,328
279
15,631
7
Directors remuneration
8
Tax on profit on ordinary activities
2005
£000
5
215
220
72
292
Table of Contents
2005
£000
215
65
6
125
24
220
9
Goodwill
Group
£000
745
1,604
2,349
399
2,748
(10
)
(20
)
(30
)
(125
)
(155
)
2,593
2,319
Table of Contents
10
Tangible fixed assets
Freehold
Short
Plant,
Land and
Leasehold
Machinery &
Group
Buildings
Buildings
Equipment
Total
£000
£000
£000
£000
1,579
218
10,331
12,128
13
13
672
672
(132
)
(395
)
(527
)
2
173
175
1,579
88
10,794
12,461
212
114
5,405
5,731
4
4
30
34
1,003
1,067
(132
)
(391
)
(523
)
51
51
242
16
6,072
6,330
1,367
104
4,926
6,397
1,337
72
4,722
6,131
Company
11
Fixed asset investments
2005
Group
Company
2005
2005
£000
£000
2,280
19
19
2,280
Table of Contents
Investment in subsidiary undertaking
Country of
Registration
Holding
%
England
Ordinary
85
Preference
82
B Preference
84
C Preference
100
England
Ordinary
100
USA
Ordinary
100
Germany
Ordinary
100
England
Ordinary
100
England
Ordinary
100
England
Ordinary
100
South Africa
Ordinary
100
Sweden
Ordinary
100
England
Ordinary
100
England
Ordinary
100
England
Ordinary
100
USA
Ordinary
100
England
Ordinary
100
England
Ordinary
100
England
Ordinary
100
England
Ordinary
100
England
Ordinary
100
England
Ordinary
100
England
Ordinary
100
England
Ordinary
100
South Africa
Ordinary
100
England
Ordinary
100
England
Ordinary
100
England
Ordinary
100
Country of
Registration
Holding
%
India
Ordinary
50
Table of Contents
Acquisition of subsidiary undertaking
Profit and Loss Account
£000
144
(43
)
101
101
(20
)
81
Table of Contents
Book and
Fair Value
£000
(As restated)
10
6,563
7,309
8,728
(7,074
)
(5,206
)
(8,280
)
(515
)
(1,604
)
(69
)
745
1,604
2,349
2,280
150
2,130
2,280
12
Stocks
2005
£000
1,668
1,848
5,143
8,659
Table of Contents
Company
13
Debtors
2005
Group
Company
£000
£000
6,792
262
11
83
389
7,537
14
Creditors: Amounts falling due within one year
2005
Group
Company
£000
£000
5,668
4,531
150
353
437
233
2,451
13,673
150
15
Creditors: Amounts falling due after more than one year
2005
Group
Company
£000
£000
331
182
150
513
150
Table of Contents
Finance leases
2005
£000
233
163
168
564
Deferred consideration
16
Creditors: Amounts falling due after more than one year
2005
Group
Company
£000
£000
9,185
Analysis of borrowings
2005
Group
£000
1,200
1,200
7,985
10,385
10,385
Table of Contents
17
Provisions for liabilities and charges
2005
Group
Company
£000
£000
131
(72
)
(12
)
32
(83
)
(8
)
91
83
18
Called-up
share
capital
2005
£000
2,600
2,130
19
Reserves
Profit and
Loss Account
£000
179
(77
)
118
(2,148
)
(1,928
)
Table of Contents
20
Reconciliation of movements in shareholders funds
21
Minority interests
2005
£000
22
Reconciliation of operating profit to operating cash flows
2005
£000
1,338
1,200
(841
)
392
700
2,789
23
Analysis and reconciliation of net debt
At Start
Exchange
At End
of Year
Cash Flow
Acquisition
Adjustment
of Year
£000
£000
£000
£000
£000
1,958
207
42
2,207
(3,853
)
(615
)
(4,468
)
(1,895
)
(408
)
42
(2,261
)
(9,583
)
645
(247
)
(9,185
)
(1,200
)
(1,200
)
(12,678
)
237
42
(247
)
(12,646
)
Table of Contents
2005
£000
(366
)
398
32
(12,678
)
(12,646
)
24
Guarantees and other financial commitments
a) Capital commitments
2005
£000
b) Operating lease
commitments
Land and
Plant and
Buildings
Machinery
2005
2005
£000
£000
5
51
168
65
281
52
454
168
c) Other commitments
2005
£000
79
36
Table of Contents
25
Pension arrangements
Composition of the Scheme
At 31 December 2005
2.65%
5.00%
2.75%
Long Term Rate
of Return
Expected at
Market Value at
31 December
31 December
2005
2005
£000
8.00
%
11,366
4.70
%
15,656
4.10
%
155
27,177
32,281
(5,104
)
1,531
(3,573
)
31 December 2005
£000
1,571
(1,464
)
107
Table of Contents
31 December 2005
£000
1,777
(334
)
(4,511
)
(3,068
)
(2,143
)
107
(3,068
)
(5,104
)
1,777
7
%
(334
)
(1
)%
(3,068
)
(10
)%
26
Subsequent Events
27
Related Party Disclosures
28
Summary of differences between accounting principles in the
United Kingdom and the United State of America
Table of Contents
Notes
2005
£000
(77
)
a
125
b
7
55
202
a
155
b
(268
)
89
(a)
Goodwill Amortization
(b)
Tangible Assets
1.
Balance sheet and profit and loss account presentation
General
2.
Consolidated statement of cashflow
Table of Contents
2005
£000
1,504
(923
)
(947
)
(366
)
(1,895
)
(2,261
)
(2,261
)
Table of Contents
Table of Contents
Item 13.
Other Expenses of Issuance and Distribution
$
19,688
18,900
131,800
280,000
1,000,000
500,000
5,000
44,612
$
2,000,000
*
To be completed by amendment.
Item 14.
Indemnification of Directors and Officers
Table of Contents
Item 15.
Recent Sales of Unregistered Securities
Table of Contents
Item 16.
Exhibits and Financial Statement Schedules.
Number
Description
1
.1
Form of Purchase Agreement
2
.1(1)
LLC Purchase Agreement, dated as of October 25, 2004, among
Warner Electric Holding, Inc., Colfax Corporation and Registrant
2
.2(1)
Assignment and Assumption Agreement, dated as of
November 21, 2004, between Registrant and Altra Industrial
Motion, Inc.
2
.3(2)
Share Purchase Agreement, dated as of November 7, 2005,
among Altra Industrial Motion, Inc. and the stockholders of Hay
Hall Holdings Limited listed therein
2
.4*
Asset Purchase Agreement, dated May 18, 2006, among Warner
Electric LLC, Bear Linear LLC and the other guarantors listed
therein
3
.1
Certificate of Amendment to the Amended and Restated Certificate
of Incorporation of the Registrant, to be in effect immediately
prior to the effectiveness of the offering
3
.2
Second Amended and Restated Certificate of Incorporation of the
Registrant, to be in effect upon the consummation of the offering
3
.3
Amended and Restated Bylaws of the Registrant, to be in effect
upon the consummation of the offering
4
.1*
Amended and Restated Registration Rights Agreement, dated
January 6, 2005, among Registrant, Genstar Capital Partners
II, L.P., Stargen III, L.P. and Caisse de dépôt et
Placement du Québec
4
.2(1)
Indenture, dated as of November 30, 2004, among Altra
Industrial Motion, Inc., the Guarantors party thereto and The
Bank of New York Trust Company, N.A. as trustee
4
.3(3)
First Supplemental Indenture, dated as of February 7, 2006,
among Altra Industrial Inc., the guarantors party thereto, and
The Bank of New York Trust Company, N.A. as trustee
4
.4(2)
Second Supplemental Indenture, dated as of February 8,
2006, among Altra Industrial Inc., the guarantors party thereto,
and The Bank of New York Trust Company, N.A. as trustee
4
.5(3)
Third Supplemental Indenture, dated as of April 24, 2006,
among Altra Industrial Inc., the guarantors party thereto, and
The Bank of New York Trust Company, N.A. as trustee
Table of Contents
Number
Description
4
.6(1)
Form of 9% Senior Secured Notes due 2011 (included in
Exhibit 4.1)
4
.7(1)
Registration Rights Agreement, dated as of November 30,
2004, among Altra Industrial Motion, Inc., Jefferies &
Company, Inc., and the Subsidiary Guarantors party thereto
4
.8(2)
Indenture, dated as of February 8, 2006, among Altra
Industrial Motion Inc. the guarantors party thereto, the Bank of
New York, as trustee and paying agent and the Bank of New York
(Luxembourg) SA, as Luxembourg paying agent
4
.9(3)
First Supplemental Indenture, dated as of April 24, 2006,
among Altra Industrial Inc., the guarantors party thereto, and
The Bank of New York as trustee
4
.10(2)
Form of
11
1
/
4
%
Senior Notes due 2013
4
.11(2)
Registrants Rights Agreement, dated as of February 8, 2006,
among Altra Industrial Inc., the guarantors party thereto, and
Jefferies International Limited, as initial purchasers
4
.12*
Note Purchase Agreement, dated November 30, 2004,
between Registrant and Caisse de dépôt et Placement du
Québec
4
.13*
Form of Caisse de dépôt et Placement du Québec
Note, due November 30, 2019
4
.14*
Amended and Restated Stockholders Agreement, dated
January 6, 2005, among the Registrant and the stockholders
listed therein
4
.15*
First Amendment to the Amended and Restated Stockholders
Agreement, dated May 1, 2005, among the Registrant and the
stockholders listed therein
4
.16
Form of Common Stock Certificate
4
.17
Second Amendment to the Amended and Restated Stockholders
Agreement among the Registrant and the stockholders listed
therein
4
.18
First Amendment to the Amended and Restated Registration Rights
Agreement among the Registrant and the stockholders listed
therein
5
.1
Opinion of Weil, Gotshal & Manges LLP
10
.1(1)
Credit Agreement, dated as of November 30, 2004, among
Altra Industrial Motion, Inc. and certain subsidiaries of the
Company, as Guarantors, the financial institutions listed
therein, as Lenders, and Wells Fargo Bank, as Lead Arranger
10
.2(1)
Security Agreement, dated as of November 30, 2004, among
Altra Industrial Motion, Inc., the other Grantors listed therein
and The Bank of New York Trust Company, N.A.
10
.3(1)
Patent Security Agreement, dated as of November 30, 2004,
among Kilian Manufacturing Corporation, Warner Electric
Technology LLC, Formsprag LLC, Boston Gear LLC, Ameridrives
International, L.P. and The Bank of New York Trust Company,
N.A.
10
.4(1)
Trademark Security Agreement, dated as of November 30,
2004, among Warner Electric Technology LLC, Boston Gear LLC and
The Bank of New York Trust Company, N.A.
10
.5(1)
Intercreditor and Lien Subordination Agreement, dated as of
November 30, 2004, among Wells Fargo Foothill, Inc., The
Bank of New York Trust Company, N.A. and Altra Industrial
Motion, Inc.
10
.6(1)
Agreement, dated as of October 24, 2004, between
Ameridrives International, L.P. and United Steel Workers of
America Local 3199-10
10
.7(1)
Labor Agreement, dated as of August 9, 2004, between Warner
Electric LLC (formerly Warner Electric Inc.) and International
Association of Machinists and Aerospace Works, AFL-CIO, and
Aeronautical Industrial District Lode 776, Local Lodge 2771
10
.8*
Labor Agreement, dated May 17, 2006, between Warner
Electric LLC and United Steelworkers and Local Union
No. 3245
10
.9*
Labor Agreement, dated June 6, 2005, between Formsprag LLC
and UAW Local 155
10
.10(1)
Employment Agreement, dated as of January 6, 2005, among
Altra Industrial Motion, Inc., the Registrant and Michael L. Hurt
Table of Contents
Number
Description
10
.11(1)
Employment Agreement, dated as of January 6, 2005, among
Altra Industrial Motion, Inc., the Registrant and Carl
Christenson
10
.12(1)
Employment Agreement, dated as of January 12, 2005, among
Altra Industrial Motion, Inc., the Registrant and David Wall
10
.13(1)
Registrants 2004 Equity Incentive Plan
10
.14*
Amendment to Registrants 2004 Equity Incentive Plan
10
.15(1)
Form of Registrants Restricted Stock Award Agreement
10
.16*
Subscription Agreement, dated November 30, 2004, among
Registrant, the preferred purchasers and the common purchasers
as listed therein
10
.17(1)
Advisory Services Agreement, dated as of November 30, 2004,
among Registrant, Altra Industrial Motion, Inc. and Genstar
Capital, L.P.
10
.18(1)
Transition Services Agreement, dated as of November 30,
2004, among Warner Electric Holding, Inc., Colfax Corporation
and Altra Industrial Motion, Inc.
10
.19(1)
Trademarks and Technology License Agreement, dated
November 30, 2004, among Registrant, Colfax Corporation and
Altra Industrial Motion, Inc.
10
.20
First Amendment to the Advisory Services Agreement among
Registrant, Altra Industrial Motion, Inc. and Genstar Capital
L.P.
10
.21
Second Amendment to Registrants 2004 Equity Incentive Plan
10
.22
Form of First Amendment to Employment Agreement, among Altra
Industrial Motion, Inc., the Registrant and Michael L. Hurt
10
.23
Form of Amendment to Restricted Stock Agreements with Michael
Hurt
10
.24
Form of Transition Agreement
11
.1
Statement of Computation of Earnings Per Share (required
information contained within this Form S-1)
21
.1
Subsidiaries of Registrant
23
.1
Consent of Ernst & Young LLP, independent registered
public accounting firm
23
.2
Consent of BDO Stoy Hayward LLP, independent chartered
accountants
23
.3
Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5.1)
24
.1*
Power of Attorney
(1)
Incorporated by reference to Altra Industrial Motion,
Inc.s Registration Statement on Form S-4 (File
No. 333-124944) filed with the Securities and Exchange
Commission on May 16, 2005.
(2)
Incorporated by reference to Altra Industrial Motion,
Inc.s Current Report on Form 8-K (File
No. 333-124944) filed with the Securities and Exchange
Commission on February 14, 2006.
(3)
Incorporated by reference to Altra Industrial Motion,
Inc.s Annual Report on Form 10-K (File
No. 333-124944) filed with the Securities and Exchange
Commission on May 15, 2006.
To be filed by amendment
*
Filed previously
Table of Contents
December 31,
2005
2004
$
$
287
336
38,613
42,879
$
38,900
$
43,215
$
(154
)
$
(71
)
14,000
14,198
103
13,949
14,127
35,500
35,100
(10,549
)
(6,012
)
$
38,900
$
43,215
Table of Contents
For the Periods
January 1,
December 1,
2005 to
2004 to
December 31,
December 31,
2005
2004
$
$
59
(59
)
2,449
202
4,444
(5,762
)
1,936
(5,964
)
(568
)
(71
)
$
2,504
$
(5,893
)
Table of Contents
For the Periods
January 1,
December 1,
2005 to
2004 to
December 31,
December 31,
2005
2004
$
2,504
$
(5,893
)
(4,444
)
5,762
48
4
198
59
(23
)
44
(71
)
(1,812
)
26,334
14,000
(198
)
400
(340
)
1,610
(39,994
)
1,812
$
$
Table of Contents
Table of Contents
September 29,
December 31,
2006
2005
$
$
668
287
39,444
38,613
$
40,112
$
38,900
$
(595
)
$
(154
)
1,500
14,000
102
103
1,007
13,949
35,500
35,500
3,605
(10,549
)
$
40,112
$
38,900
Table of Contents
For the Nine Months Ended
September 29, 2006
September 30, 2005
$
$
44
(44
)
1,811
1,834
11,950
2,663
10,139
785
(554
)
(424
)
10,693
1,209
Table of Contents
For the Nine Months Ended
September 29, 2006
September 30, 2005
$
10,693
1,209
(11,950
)
(2,663
)
261
36
44
(25
)
(17
)
(1,059
)
181
(2,080
)
(1,210
)
(12,500
)
(198
)
300
14,580
1,108
2,080
1,210
$
$
Table of Contents
Table of Contents
Balance at
Beginning
Balance at
Reserve for inventory obsolescence:
of Period
Additions
Deductions
End of Period
$
5,089
$
3,033
$
(1,309
)
$
6,813
6,813
1,459
(2,084
)
6,188
6,188
545
(372
)
6,361
$
6,361
$
2,385
$
(1,903
)
$
6,843
Balance at
Beginning
Balance at
Reserve for uncollectible accounts:
of Period
Additions
Deductions
End of Period
$
2,939
$
730
$
(2,053
)
$
1,616
1,616
589
(772
)
1,433
1,433
135
(144
)
1,424
$
1,424
$
687
$
(314
)
$
1,797
Balance at
Beginning
Balance at
Income tax assets valuation allowance:
of Period
Additions
Deductions
End of Period
$
10,261
$
7,573
$
$
17,834
17,834
895
18,729
18,462
(88
)
18,374
$
18,374
$
(1,985
)
$
16,389
(1) | The difference between the balance at the end of the period ending November 30, 2004 and the balance at December 1, 2004 is the result of purchase accounting for the Acquisition. |
II-14
Item 17. | Undertakings |
(1) That for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. | |
(2) That for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. | |
(3) To provide to the underwriters at the closing specified in the Underwriting Agreement, certificates in such denomination and registered in such names as required by the underwriters to permit prompt delivery to each purchaser. | |
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, if the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. | |
(5) That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
i. Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; |
II-15
ii. Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; | |
iii. The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and | |
iv. Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
II-16
II-17
ALTRA HOLDINGS, INC.
By:
/s/
David Wall
Name: David Wall
Title: Chief Financial Officer
Signature
Title
/s/
Michael L. Hurt
Chief Executive Officer and Director
(principal executive officer)
/s/
David Wall
Chief Financial Officer
(principal financial officer and
principal accounting officer)
/s/
Frank E. Bauchiero*
Director
/s/
Jean-Pierre L.
Conte*
Director
/s/
Darren J. Gold*
Director
/s/
Larry McPherson*
Director
/s/
Richard D.
Paterson*
Director
* /s/
David Wall
as attorney-in-fact
Table of Contents
Number
Description
1
.1
Form of Purchase Agreement
2
.1(1)
LLC Purchase Agreement, dated as of October 25, 2004, among
Warner Electric Holding, Inc., Colfax Corporation and Registrant
2
.2(1)
Assignment and Assumption Agreement, dated as of
November 21, 2004, between Registrant and Altra Industrial
Motion, Inc.
2
.3(2)
Share Purchase Agreement, dated as of November 7, 2005,
among Altra Industrial Motion, Inc. and the stockholders of Hay
Hall Holdings Limited listed therein
2
.4*
Asset Purchase Agreement, dated May 18, 2006, among Warner
Electric LLC, Bear Linear LLC and the other guarantors listed
therein
3
.1
Amendment to the Amended and Restated Certificate of
Incorporation of the Registrant, to be in effect immediately
prior to the effectiveness of the offering
3
.2
Second Amended and Restated Certificate of Incorporation of the
Registrant, to be in effect upon the consummation of the offering
3
.3
Amended and Restated Bylaws of the Registrant, to be in effect
upon the consummation of the offering
4
.1*
Amended and Restated Registration Rights Agreement, dated
January 6, 2005, among Registrant, Genstar Capital Partners
II, L.P., Stargen III, L.P. and Caisse de dépôt et
Placement du Québec
4
.2(1)
Indenture, dated as of November 30, 2004, among Altra
Industrial Motion, Inc., the Guarantors party thereto and The
Bank of New York Trust Company, N.A. as trustee
4
.3(3)
First Supplemental Indenture, dated as of February 7, 2006,
among Altra Industrial Inc., the guarantors party thereto, and
The Bank of New York Trust Company, N.A. as trustee
4
.4(2)
Second Supplemental Indenture, dated as of February 8,
2006, among Altra Industrial Inc., the guarantors party thereto,
and The Bank of New York Trust Company, N.A. as trustee
4
.5(3)
Third Supplemental Indenture, dated as of April 24, 2006,
among Altra Industrial Inc., the guarantors party thereto, and
The Bank of New York Trust Company, N.A. as trustee
4
.6(1)
Form of 9% Senior Secured Notes due 2011 (included in
Exhibit 4.1)
4
.7(1)
Registration Rights Agreement, dated as of November 30,
2004, among Altra Industrial Motion, Inc., Jefferies &
Company, Inc., and the Subsidiary Guarantors party thereto
4
.8(2)
Indenture, dated as of February 8, 2006, among Altra
Industrial Motion Inc. the guarantors party thereto, the Bank of
New York, as trustee and paying agent and the Bank of New York
(Luxembourg) SA, as Luxembourg paying agent
4
.9(3)
First Supplemental Indenture, dated as of April 24, 2006,
among Altra Industrial Inc., the guarantors party thereto, and
The Bank of New York as trustee
4
.10(2)
Form of
11
1
/
4
%
Senior Notes due 2013
4
.11(2)
Registrants Rights Agreement, dated as of February 8, 2006,
among Altra Industrial Inc., the guarantors party thereto, and
Jefferies International Limited, as initial purchasers
4
.12*
Note Purchase Agreement, dated November 30, 2004,
between Registrant and Caisse de dépôt et Placement du
Québec
4
.13*
Form of Caisse de dépôt et Placement du Québec
Note, due November 30, 2019
4
.14*
Amended and Restated Stockholders Agreement, dated
January 6, 2005, among the Registrant and the stockholders
listed therein
4
.15*
First Amendment to the Amended and Restated Stockholders
Agreement, dated May 1, 2005, among the Registrant and the
stockholders listed therein
Table of Contents
Number
Description
4
.16
Form of Common Stock Certificate
4
.17
Second Amendment to the Amended and Restated Stockholders
Agreement among the Registrant and the stockholders listed
therein
4
.18
First Amendment to the Amended and Restated Registration Rights
Agreement among the Registrant and the stockholders listed
therein
5
.1
Opinion of Weil, Gotshal & Manges LLP
10
.1(1)
Credit Agreement, dated as of November 30, 2004, among
Altra Industrial Motion, Inc. and certain subsidiaries of the
Company, as Guarantors, the financial institutions listed
therein, as Lenders, and Wells Fargo Bank, as Lead Arranger
10
.2(1)
Security Agreement, dated as of November 30, 2004, among
Altra Industrial Motion, Inc., the other Grantors listed therein
and The Bank of New York Trust Company, N.A.
10
.3(1)
Patent Security Agreement, dated as of November 30, 2004,
among Kilian Manufacturing Corporation, Warner Electric
Technology LLC, Formsprag LLC, Boston Gear LLC, Ameridrives
International, L.P. and The Bank of New York Trust Company,
N.A.
10
.4(1)
Trademark Security Agreement, dated as of November 30,
2004, among Warner Electric Technology LLC, Boston Gear LLC and
The Bank of New York Trust Company, N.A.
10
.5(1)
Intercreditor and Lien Subordination Agreement, dated as of
November 30, 2004, among Wells Fargo Foothill, Inc., The
Bank of New York Trust Company, N.A. and Altra Industrial
Motion, Inc.
10
.6(1)
Agreement, dated as of October 24, 2004, between
Ameridrives International, L.P. and United Steel Workers of
America Local 3199-10
10
.7(1)
Labor Agreement, dated as of August 9, 2004, between Warner
Electric LLC (formerly Warner Electric Inc.) and International
Association of Machinists and Aerospace Works, AFL-CIO, and
Aeronautical Industrial District Lode 776, Local Lodge 2771
10
.8*
Labor Agreement, dated May 17, 2006, between Warner
Electric LLC and United Steelworkers and Local Union
No. 3245
10
.9*
Labor Agreement, dated June 6, 2005, between Formsprag LLC
and UAW Local 155
10
.10(1)
Employment Agreement, dated as of January 6, 2005, among
Altra Industrial Motion, Inc., the Registrant and Michael L. Hurt
10
.11(1)
Employment Agreement, dated as of January 6, 2005, among
Altra Industrial Motion, Inc., the Registrant and Carl
Christenson
10
.12(1)
Employment Agreement, dated as of January 12, 2005, among
Altra Industrial Motion, Inc., the Registrant and David Wall
10
.13(1)
Registrants 2004 Equity Incentive Plan
10
.14*
Amendment to Registrants 2004 Equity Incentive Plan
10
.15(1)
Form of Registrants Restricted Stock Award Agreement
10
.16*
Subscription Agreement, dated November 30, 2004, among
Registrant, the preferred purchasers and the common purchasers
as listed therein
10
.17(1)
Advisory Services Agreement, dated as of November 30, 2004,
among Registrant, Altra Industrial Motion, Inc. and Genstar
Capital, L.P.
10
.18(1)
Transition Services Agreement, dated as of November 30,
2004, among Warner Electric Holding, Inc., Colfax Corporation
and Altra Industrial Motion, Inc.
10
.19(1)
Trademarks and Technology License Agreement, dated
November 30, 2004, among Registrant, Colfax Corporation and
Altra Industrial Motion, Inc.
10
.20
First Amendment to the Advisory Services Agreement among
Registrant, Altra Industrial Motion, Inc. and Genstar Capital
L.P.
10
.21
Second Amendment to Registrants 2004 Equity Incentive Plan
Table of Contents
Number
Description
10
.22
Form of Amendment to Employment Agreement, among Altra
Industrial Motion, Inc., the Registrant and Michael L. Hurt
10
.23
Form of Amendment to Restricted Stock Award Agreements with
Michael Hurt
10
.24
Form of Transition Agreement
11
.1
Statement of Computation of Earnings Per Share (required
information contained within this Form S-1)
21
.1
Subsidiaries of Registrant
23
.1
Consent of Ernst & Young LLP, independent registered
public accounting firm
23
.2
Consent of BDO Stoy Hayward LLP, independent chartered
accountants
23
.3
Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5.1)
24
.1*
Power of Attorney
(1)
Incorporated by reference to Altra Industrial Motion,
Inc.s Registration Statement on Form S-4 (File
No. 333-124944) filed with the Securities and Exchange
Commission on May 16, 2005.
(2)
Incorporated by reference to Altra Industrial Motion,
Inc.s Current Report on Form 8-K (File
No. 333-124944) filed with the Securities and Exchange
Commission on February 14, 2006.
(3)
Incorporated by reference to Altra Industrial Motion,
Inc.s Annual Report on Form 10-K (File
No. 333-124944) filed with the Securities and Exchange
Commission on May 15, 2006.
To be filed by amendment
*
Filed previously
Exhibit 1.1
ALTRA HOLDINGS, INC.
(a Delaware corporation)
[10,000,000] Shares of Common Stock
PURCHASE AGREEMENT
Dated: [ , 2006]
ALTRA HOLDINGS, INC.
(a Delaware corporation)
[10,000,000] Shares of Common Stock
(Par Value $0.001 Per Share)
PURCHASE AGREEMENT
[ , 2006]
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Jefferies & Company
Wachovia Securities
Robert W. Baird & Co.
c/o Merrill Lynch & Co. Merrill Lynch, Pierce, Fenner & Smith Incorporated |
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
Altra Holdings, Inc., a Delaware corporation (the "Company"), and the
persons listed in Schedule B hereto (the "Selling Shareholders"), confirm their
respective agreements with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as hereinafter provided in Section X
hereof), for whom Merrill Lynch is acting as representative (in such capacity,
the "Representative"), with respect to (i) the sale by the Company and the
Selling Shareholders, acting severally and not jointly, and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
shares of Common Stock, par value $0.001 per share, of the Company ("Common
Stock") set forth in Schedules A and B hereto and (ii) the grant by the Selling
Shareholders to the Underwriters, acting severally and not jointly, of the
option described in Section II(B) hereof to purchase all or any part of
[1,500,000] additional shares of Common Stock to cover overallotments, if any.
The aforesaid [10,000,000] shares of Common Stock (the "Initial Securities") to
be purchased by the Underwriters and all or any part of the [1,500,000] shares
of Common Stock subject to the option described in Section II(B) hereof (the
"Option Securities") are hereinafter called, collectively, the "Securities."
The Company and the Selling Shareholders understand that the Underwriters propose to make a public offering of the Securities as soon as the Representative deems advisable after this Agreement has been executed and delivered.
The Company, the Selling Shareholders and the Underwriters agree that up to 5% of the Securities to be purchased by the Underwriters (the "Reserved Securities") shall be reserved for
sale by the Underwriters to certain eligible employees and persons having business relationships with the Company (the "Invitees"), as part of the distribution of the Securities by the Underwriters, subject to the terms of this Agreement, the applicable rules, regulations and interpretations of the National Association of Securities Dealers, Inc. ("NASD") and all other applicable laws, rules and regulations. To the extent that such Reserved Securities are not orally confirmed for purchase by Invitees by the end of the first business day after the date of this Agreement, such Reserved Securities may be offered to the public as part of the public offering contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-1 (No. 333-137660), including the related preliminary prospectus or prospectuses, covering the registration of the Securities under the Securities Act of 1933, as amended (the "1933 Act"). Promptly after execution and delivery of this Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule 430A ("Rule 430A") of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations. The information included in such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of such registration statement at the time it became effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information." Each prospectus used before such registration statement became effective, and any prospectus that omitted the Rule 430A Information, that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a "preliminary prospectus." Such registration statement, including the amendments thereto, the exhibits and any schedules thereto, at the time it became effective, and including the Rule 430A Information, is herein called the "Registration Statement." Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b) Registration Statement," and after such filing the term "Registration Statement" shall include the Rule 462(b) Registration Statement. The final prospectus in the form first furnished to the Underwriters for use in connection with the offering of the Securities is herein called the "Prospectus." For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
I. Representations and Warranties.
A. Representations and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, as of the Applicable Time referred to in Section I(A)(1) hereof, as of the Closing Time referred to in Section II(C) hereof, and as of each Date of Delivery (if any) referred to in Section II(B) hereof, and agrees with each Underwriter, as follows:
1. Compliance with Registration Requirements. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendment thereto has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement, any Rule 462(b) Registration Statement or any post-effective amendment thereto has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are threatened by the Commission, and any request on the part of the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effective and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), the Registration Statement, the Rule 462(b) Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, any preliminary prospectus and any supplement thereto or prospectus wrapper prepared in connection therewith, at their respective times of issuance and at the Closing Time, complied and will comply in all material respects with any applicable laws or regulations of foreign jurisdictions in which the Prospectus and such preliminary prospectus, as amended or supplemented, if applicable, are distributed in connection with the offer and sale of Reserved Securities. Neither the Prospectus nor any amendments or supplements thereto (including any prospectus wrapper), at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
As of the Applicable Time (as defined below), neither (x) the Issuer General Use Free Writing Prospectuses (as defined below) issued at or prior to the Applicable Time and the Statutory Prospectus (as defined below) as of the Applicable Time and the information included on Schedule C hereto, all considered together (collectively, the "General Disclosure Package"), nor (y) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
"Applicable Time" means (Eastern time) on [ ] or such other time as agreed by the Company and Merrill Lynch.
"Statutory Prospectus" as of any time means the prospectus relating to the Securities that is included in the Registration Statement immediately prior to the Applicable Time.
"Issuer Free Writing Prospectus" means any "issuer free writing prospectus," as defined in Rule 433 of the 1933 Act Regulations ("Rule 433"), relating to the Securities that (i) is required to be filed with the Commission by the Company, (ii) is a "road show that is a written communication" within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in
the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company's records pursuant to Rule 433(g).
"Issuer General Use Free Writing Prospectus" means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors (other than a Bona Fide Electronic Road Show (as defined below)), as evidenced by its being specified in Schedule E hereto.
"Issuer Limited Use Free Writing Prospectus" means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
The Company has made available a "bona fide electronic road show," as defined in Rule 433, in compliance with Rule 433(d)(8)(ii) (the "Bona Fide Electronic Road Show") such that no filing of any "road show" (as defined in Rule 433(h)) is required in connection with the offering of the Securities.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Securities or until any earlier date that the issuer notified or notifies Merrill Lynch as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through Merrill Lynch expressly for use therein.
Each preliminary prospectus (including the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto) complied when so filed in all material respects with the 1933 Act Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
At the time of filing the Registration Statement, any 462(b) Registration Statement and any post-effective amendments thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an "ineligible issuer," as defined in Rule 405 of the 1933 Act Regulations.
2. Independent Accountants. The accountants who certified the financial statements and supporting schedules included in the Registration Statement are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
3. Financial Statements. The consolidated financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly in all material
respects the financial position of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders' equity and cash flows of the Company and its consolidated subsidiaries for the periods specified, in each case on the basis stated in the Registration Statement; said consolidated financial statements have been prepared in conformity with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved, except as disclosed therein. The supporting schedules, if any, present fairly in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information included in the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included in the Registration Statement. The pro forma financial statements and the related notes thereto included in the Registration Statement, the General Disclosure Package and the Prospectus, have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus regarding "non-GAAP financial measures" (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the 1933 Act, to the extent applicable.
4. No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, (a "Material Adverse Effect"), (ii) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries considered as one enterprise, and (iii) except as described in the Prospectus, there has been no dividend or distribution of any kind declared, paid or made by the Company or the Selling Shareholders on any class of its capital stock.
5. Good Standing of the Company. The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the state of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
6. Good Standing of Subsidiaries. Each material "subsidiary" of the Company (each a "Subsidiary" and, collectively, the "Subsidiaries") has been duly organized and is validly existing as a corporation, limited liability company or limited partnership in good standing under the laws of the jurisdiction of its organization, has the power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation, limited liability company or limited partnership to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; except as otherwise disclosed in the Registration Statement, all of the issued and outstanding capital stock, limited liability company interests or limited partnership interests of each such Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding shares of capital stock, limited liability company interests or limited partnership interests of any Subsidiary was issued in violation of the preemptive or similar rights of any securityholder, member or partner of such Subsidiary. The only subsidiaries of the Company are the subsidiaries listed on Exhibit 21 to the Registration Statement.
7. Capitalization. The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus in the column entitled "Actual" under the caption "Capitalization" (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Prospectus). The shares of issued and outstanding capital stock, including the Securities to be purchased by the Underwriters from the Selling Shareholders, have been duly authorized and validly issued and are fully paid and non-assessable; none of the outstanding shares of capital stock, including the Securities to be purchased by the Underwriters from the Selling Shareholders, was issued in violation of the preemptive or other similar rights of any securityholder of the Company.
8. Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
9. Authorization and Description of Securities. The Securities to be purchased by the Underwriters from the Company have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable; the Common Stock conforms to all statements relating thereto contained in the Prospectus and such description conforms to the rights set forth in the instruments defining the same; no holder of the Securities will be subject to personal liability by reason of being such a holder; and the issuance of the
Securities is not subject to the preemptive or other similar rights of any securityholder of the Company.
10. Absence of Defaults and Conflicts. Neither the Company nor any of its subsidiaries is in violation of its charter or by-laws, limited liability company agreement, partnership agreement or other organizational documents, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any subsidiary is subject (collectively, "Agreements and Instruments") except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption "Use of Proceeds") and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws, limited liability company agreement, partnership agreement or other organizational documents of the Company or any subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any subsidiary or any of their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any subsidiary.
11. Absence of Labor Dispute. No labor dispute with the employees of the Company or any subsidiary exists or, to the knowledge of the Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any subsidiary's principal suppliers, manufacturers, customers or contractors, which, with respect to any such dispute or disturbance, would result in a Material Adverse Effect.
12. Absence of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any subsidiary, which is required to be disclosed in the Registration Statement (other than as disclosed therein), or would reasonably be likely to result in a Material Adverse Effect, or which would reasonably be likely to materially and adversely affect the material properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder.
13. Accuracy of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement or, the Prospectus or to be filed as exhibits thereto which have not been so described and filed as required.
14. Possession of Intellectual Property. The Company and its subsidiaries own or possess, or can acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, "Intellectual Property") necessary to carry on the business now operated by them, and neither the Company nor any of its subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect.
15. Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Company of its obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except (i) filing with the Secretary of State of Delaware an Amended and Restated Certificate of Incorporation, which will be made on or prior to the Applicable Time, (ii) such as have been already obtained or as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws and (iii) such as have been obtained under the laws and regulations of jurisdictions outside the United States in which the Reserved Securities are offered.
16. Absence of Manipulation. Neither the Company nor any affiliate of the Company has taken, nor will the Company or any affiliate take, directly or indirectly, any action which is designed to or which has constituted or which would be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
17. Possession of Licenses and Permits. The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect; the Company and its subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect; and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
18. Title to Property. The Company and its subsidiaries have good and marketable title to all real property owned by the Company and its subsidiaries and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (i) are described in the Prospectus or (ii) do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any of its subsidiaries; and all of the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries holds properties described in the Prospectus, are in full force and effect, and neither the Company nor any subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or such subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease.
19. Investment Company Act. The Company is not required, and upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Prospectus will not be required, to register as an "investment company" under the Investment Company Act of 1940, as amended (the "1940 Act").
20. Environmental Laws. Except as described in the Registration Statement and except as would not, singly or in the aggregate, result in a Material Adverse Effect, (i) neither the Company nor any of its subsidiaries is in violation of any applicable federal, state, local or foreign statute, law, rule, regulation, ordinance, code or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations
relating to the release into the environment or threatened release into the environment of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products or asbestos-containing materials (collectively, "Hazardous Materials") or to the environmental aspects of the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, "Environmental Laws"), (ii) the Company and its subsidiaries have all permits, authorizations and approvals required for their respective operations under any applicable Environmental Laws and are each in compliance with their requirements, (iii) there are no pending or to the knowledge of the Company threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation or proceedings or, to the knowledge of the Company, any investigation relating to any Environmental Law against the Company or any of its subsidiaries and (iv) to the knowledge of the Company there are no known events or circumstances existing as of the date hereof that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
21. Registration Rights. (i) There are no persons with registration rights or other similar rights to have any securities registered pursuant to the Registration Statement other than rights which have been waived and (ii) there are no persons with registration rights or other similar rights to have any securities registered by the Company under the 1933 Act other than as described in the Prospectus.
22. Accounting Controls and Disclosure Controls. The Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management's general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management's general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Prospectus, since the end of the Company's most recent audited fiscal year, there has been (1) no material weakness in the Company's internal control over financial reporting (whether or not remediated) and (2) no change in the Company's internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting.
The Company and its consolidated subsidiaries employ disclosure controls and procedures that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission's rules and forms, and is accumulated and communicated to
the Company's management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
23. Compliance with the Sarbanes-Oxley Act. Since the initial filing date of the Registration Statement, there has been no failure on the part of the Company or its directors or officers, in their capacities as such, to comply in all material respects with any applicable provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the "Sarbanes-Oxley Act"). The Company has taken all necessary actions to ensure that, upon the effectiveness of the Registration Statement, it will be in compliance with the provisions of the Sarbanes-Oxley Act that are then in effect and which the Company is required to comply with as of the effectiveness of the Registration Statement, and is actively taking steps to ensure that they will be in compliance with other provisions of the Sarbanes-Oxley Act not currently in effect, upon the effectiveness of such provisions, or will become applicable to the Company at all times after the effectiveness of the Registration Statement.
24. Payment of Taxes. Except to the extent the failure or inadequacy would not result in a Material Adverse Effect, (i) all United States federal income tax returns of the Company and its subsidiaries required by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided; (ii) the Company and its subsidiaries have filed all other tax returns that are required to have been filed by them pursuant to applicable foreign, state, local or other law, and has paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company and its subsidiaries, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided; and (iii) the charges, accruals and reserves on the books of the Company in respect of any income and corporation tax liability for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined.
25. Insurance. The Company and its subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies engaged in the same or similar business of the same or similar size and/or otherwise similarly situated, and all such insurance is in full force and effect. The Company has no reason to believe that it or any subsidiary will not be able (i) to renew existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Effect.
26. Statistical and Market-Related Data. Any statistical and market-related data included in the Registration Statement and the Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate, and the Company has obtained the consent to the use of such data from sources requiring consent.
27. Foreign Corrupt Practices Act. Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the "FCPA"), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any "foreign official" (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
28. Money Laundering Laws. The operations of the Company are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions in which the Company and its subsidiaries do business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency within such jurisdictions (collectively, the "Money Laundering Laws") and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
29. OFAC. Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate or person acting on behalf of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department ("OFAC"); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
30. Stock Option Awards. The Company has no outstanding stock option awards.
31. Officer's Certificates. Any certificate signed by any officer of the Company or any of its subsidiaries delivered to the Representative or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
B. Representations and Warranties by the Selling Shareholders. Each Selling Shareholder severally and not jointly represents and warrants to each Underwriter as of the date hereof, as of the Closing Time, and, if the Selling Shareholder is selling Option Securities on a Date of Delivery, as of each such Date of Delivery, and agrees with each Underwriter, as follows:
1. Accurate Disclosure. Such Selling Shareholder is not prompted to sell the Securities to be sold by such Selling Shareholder hereunder by any information concerning the Company or any subsidiary of the Company which is not set forth in the General Disclosure Package or the Prospectus; provided, however, that this representation and warranty is only being given by those Selling Shareholders who are officers of the Company.
2. Authorization of this Agreement. This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
3. Authorization of Power of Attorney and Custody Agreement. The Power of Attorney and Custody Agreement, in the form heretofore furnished to the Representative (the "Power of Attorney and Custody Agreement"), has been duly authorized, executed and delivered by such Selling Shareholder and is the valid and binding agreement of such Selling Shareholder.
4. Noncontravention. The execution and delivery of this Agreement and the Power of Attorney and Custody Agreement and the sale and delivery of the Securities to be sold by such Selling Shareholder and the consummation of the transactions contemplated herein and compliance by such Selling Shareholder with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, (i) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Securities to be sold by such Selling Shareholder or any property or assets of such Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder may be bound, or to which any of the property or assets of such Selling Shareholder is subject, or (ii) result in any violation of (a) the provisions of the charter or by-laws or other organizational instrument of such Selling Shareholder, if applicable, or (b) any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over such Selling Shareholder or any of its properties; except in the case of clause (i) or clause (ii)(b), for such conflicts, breaches, violations or defaults as would not reasonably be expected to impair in any material respect the consummation of such Selling Shareholder's obligations hereunder and thereunder.
5. Valid Title. Such Selling Shareholder has, and at the Closing Time will have, valid title to the Securities to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Power of Attorney and Custody Agreement and to sell, transfer and deliver the Securities to be sold by such Selling Shareholder or a valid security entitlement in respect of such Securities.
6. Delivery of Securities. Upon payment of the purchase price for
the Securities to be sold by such Selling Shareholder pursuant
to this Agreement, delivery of such Securities, as directed by
the Underwriters, to Cede & Co. ("Cede") or such other nominee
as may be designated by The Depository Trust Company ("DTC")[
(unless delivery of such Securities is unnecessary because
such Securities are already in possession of Cede or such
nominee)], registration of such Securities in the name of Cede
or such other nominee[ (unless registration of such Securities
is unnecessary because such Securities are already registered
in the name of Cede or such nominee)], and the crediting of
such Securities on the books of DTC to securities accounts of
the Underwriters (assuming that neither DTC nor any such
Underwriter has notice of any "adverse claim," within the
meaning of Section 8-105 of the New York Uniform Commercial
Code (the "UCC"), to such Securities), (A) DTC shall be a
"protected purchaser," within the meaning of Section 8-303 of
the UCC, of such Securities and will acquire its interest in
the Securities (including, without limitation, all rights that
such Selling Shareholder had or has the power to transfer in
such Securities) free and clear of any adverse claim within
the meaning of Section 8-102 of the UCC, (B) under Section
8-501 of the UCC, the Underwriters will acquire a valid
security entitlement in respect of such Securities and (C) no
action (whether framed in conversion, replevin, constructive
trust, equitable lien, or other theory) based on any "adverse
claim," within the meaning of Section 8-102 of the UCC, to
such Securities may be asserted against the Underwriters with
respect to such security entitlement; for purposes of this
representation, such Selling Shareholder may assume that when
such payment, delivery[ (if necessary)] and crediting occur,
(x) such Securities will have been registered in the name of
Cede or another nominee designated by DTC, in each case on the
Company's share registry in accordance with its certificate of
incorporation, bylaws and applicable law, (y) DTC will be
registered as a "clearing corporation," within the meaning of
Section 8-102 of the UCC, and (z) appropriate entries to the
accounts of the several Underwriters on the records of DTC
will have been made pursuant to the UCC.
7. Absence of Manipulation. Such Selling Shareholder has not taken, and will not take, directly or indirectly, any action which is designed to or which has constituted or would be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
8. Absence of Further Requirements. No filing with, or consent, approval, authorization, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or required for the performance by each Selling Shareholder of its obligations hereunder or in the Power of Attorney and Custody Agreement, or in connection with the sale and delivery of the Securities by the Selling Shareholders hereunder or the consummation of the transactions contemplated by this Agreement, except (i) such as may not reasonably be expected to impair in any material respect the consummation of the Selling Shareholders' obligations hereunder, (ii) such as may have previously been made or obtained or as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws and (iii) such as have been obtained under the laws and regulations of jurisdictions outside the United States in which the Reserved Securities are offered.
9. No Association with NASD. Neither such Selling Shareholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or is a person associated with (within the meaning of Article I (dd) of the By-laws of the NASD), any member firm of the NASD.
10. Officer's Certificates. Any certificate signed by or on behalf of the Selling Shareholders as such and delivered to the Representative or to counsel for the Underwriters pursuant to the terms of this Agreement shall be deemed a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby.
II. Sale and Delivery to Underwriters; Closing.
A. Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and each Selling Shareholder, severally and not jointly,
agree to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company and
each Selling Shareholder, at the price per share set forth in Schedule C, that
proportion of the number of Initial Securities set forth in Schedule B opposite
the name of the Company or such Selling Shareholder, as the case may be, which
the number of Initial Securities set forth in Schedule A opposite the name of
such Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section X hereof, bears to the total number of Initial Securities, subject, in
each case, to such adjustments among the Underwriters as the Representative in
its sole discretion shall make to eliminate any sales or purchases of fractional
securities.
B. Option Securities. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Selling Shareholders, hereby grant an option to the Underwriters, severally and not jointly, to purchase up to an additional [1,500,000] shares of Common Stock, as set forth in Schedule B, at the price per share set forth in Schedule C, less an amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. The option hereby granted will expire 30 days after the date hereof and may be exercised in whole or in part from time to time only for the purpose of covering overallotments
which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representative to the Selling Shareholders setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery (a "Date of Delivery") shall be determined by the Representative, but shall not be later than seven full business days after the exercise of said option, nor in any event prior to the Closing Time, as hereinafter defined. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter bears to the total number of Initial Securities, subject in each case to such adjustments as the Representative in its discretion shall make to eliminate any sales or purchases of fractional shares.
C. Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Fried,
Frank, Harris, Shriver and Jacobson LLP in the City of New York, or at such
other place as shall be agreed upon by the Representative and the Company and
the Selling Shareholders, at 9:00 A.M. (Eastern time) on the third (fourth, if
the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section X), or such other time not later than ten business days after such date
as shall be agreed upon by the Representative and the Company and the Selling
Shareholders (such time and date of payment and delivery being herein called
"Closing Time").
In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by the Representative and the Company and the Selling Shareholders, on each Date of Delivery as specified in the notice from the Representative to the Company and the Selling Shareholders.
Payment shall be made to the Company and the Selling Shareholders by wire transfer of immediately available funds to a bank account designated by the Company and the Custodian pursuant to each Selling Shareholder's Power of Attorney and Custody Agreement, as the case may be, against delivery to the Representative for the respective accounts of the Underwriters of certificates for the Securities to be purchased by them. It is understood that each Underwriter has authorized the Representative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase. Merrill Lynch, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations hereunder.
D. Denominations; Registration. Certificates for the Initial Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representative may request in writing at least two full business days before the Closing Time or the relevant Date of Delivery, as the case may be. The certificates for the Initial Securities and
the Option Securities, if any, will be made available for examination and
packaging by the Representative in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
E. Appointment of Qualified Independent Underwriter. The Company and the Selling Shareholders hereby confirm their engagement of Robert W. Baird & Co. Incorporated ("Robert W. Baird") as, and Robert W. Baird hereby confirms its agreement with the Company and the Selling Shareholders to render services as, a "qualified independent underwriter" within the meaning of Rule 2720 of the Conduct Rules of the National Association of Securities Dealers, Inc. with respect to the offering and sale of the Securities. Robert W. Baird, solely in its capacity as qualified independent underwriter and not otherwise, is referred to herein as the "Independent Underwriter."
III. Covenants of the Company and the Selling Shareholders. The Company covenants with each Underwriter as follows:
A. Compliance with Securities Regulations and Commission Requests. The Company, subject to Section III(B), will comply with the requirements of Rule 430A, and will notify the Representative immediately, (1) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (2) of the receipt of any comments from the Commission, (3) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (5) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof as soon as practicable.
B. Filing of Amendments and Exchange Act Documents. The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment, supplement or revision to either the prospectus included in the Registration Statement at the time it became effective or to the Prospectus, and will furnish the Representative with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representative or counsel for the Underwriters reasonably shall object (other than a document which the Company believes it is required by law to file). The Company will give the Representative notice of its intention to make any such filing pursuant to the 1934 Act or the 1934 Act Regulations from the Applicable Time to the Closing
Time and will furnish the Representative with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object (other than a document which the Company believes it is required to file by law).
C. Delivery of Registration Statements. The Company has furnished or will deliver upon request to the Representative and counsel for the Underwriters, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith) and copies of all signed consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
D. Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
E. Continued Compliance with Securities Laws. The Company will comply with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section III(B), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Securities or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances, prevailing at that subsequent time, not misleading, the Company will promptly notify Merrill Lynch and will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
F. Blue Sky Qualifications. The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other domestic jurisdictions as the Representative may designate and to maintain such qualifications in effect for a period of not less than one year from the later of the effective date of the Registration Statement and any Rule 462(b) Registration Statement; provided, however, that the Company shall not be obligated to file any general consent or otherwise subject itself to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
G. Rule 158. The Company will timely file such reports pursuant to the Securities Exchange Act of 1934 (the "1934 Act") as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
H. Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under "Use of Proceeds."
I. Listing. The Company will use its commercially reasonable efforts to effect and maintain the quotation of the Securities on the Nasdaq Global Market.
J. Restriction on Sale of Securities. During a period of 180 days from
the date of the Prospectus, the Company will not, without the prior written
consent of Merrill Lynch, (1) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any share of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (2) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (1) or
(2) above is to be settled by delivery of Common Stock or such other securities,
in cash or otherwise. The foregoing sentence shall not apply to (A) the
Securities to be sold hereunder, (B) any shares of Common Stock issued by the
Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof (including any preferred stock) and
referred to in the Prospectus, (C) any shares of Common Stock issued or options
to purchase Common Stock granted pursuant to existing employee benefit plans of
the Company referred to in the Prospectus or (D) any shares of Common Stock
issued pursuant to any non-employee director stock plan or dividend reinvestment
plan. Notwithstanding the foregoing, if (i) during the last 17 days of the
180-day restricted period the Company issues an earnings release or material
news or a material event relating to the Company occurs or (ii) prior to the
expiration of the 180-day restricted period, the Company announces that it will
release earnings results or becomes aware that material news or a material event
will occur during the 16-day period beginning on the last day of the 180-day
restricted period, the restrictions imposed in this
paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
K. Reporting Requirements. The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the rules and regulations of the Commission thereunder.
L. Compliance with NASD Rules. The Company hereby agrees that it will ensure that the Reserved Securities will be restricted as required by the NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of this Agreement. The Underwriters will notify the Company as to which persons will need to be so restricted. At the request of the Underwriters, the Company will direct the transfer agent to place a stop transfer restriction upon such Reserved Securities for such period of time. Should the Company release, or seek to release, from such restrictions any of the Reserved Securities, the Company agrees to reimburse the Underwriters for any reasonable expenses (including, without limitation, legal expenses) they incur in connection with such release.
M. Issuer Free Writing Prospectuses. Each of the Company and each
Selling Shareholder represents and agrees that, unless it obtains the prior
consent of the Representative, and each Underwriter represents and agrees that,
unless it obtains the prior consent of the Company and the Representative, it
has not made and will not make any offer relating to the Securities that would
constitute an "issuer free writing prospectus," as defined in Rule 433, or that
would otherwise constitute a "free writing prospectus," as defined in Rule 405,
required to be filed with the Commission or, in the case of each Selling
Shareholder, whether or not required to be filed with the Commission. Any such
free writing prospectus consented to by the Company and the Representative is
hereinafter referred to as a "Permitted Free Writing Prospectus." Each of the
Company and each Selling Shareholder represents that it has treated or agrees
that it will treat each Permitted Free Writing Prospectus as an "issuer free
writing prospectus," as defined in Rule 433, and has complied and will comply
with the requirements of Rule 433 applicable to any Permitted Free Writing
Prospectus, including timely filing with the Commission where required,
legending and record keeping. For the purposes of clarity, nothing in this
Section III(M) shall restrict the Company from making any filings required under
the 1934 Act or 1934 Act Regulations.
IV. Payment of Expenses.
A. Expenses. The Company will pay or cause to be paid all expenses
incident to the performance of their obligations under this Agreement, including
(1) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (2) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (3) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters, (4) the fees
and disbursements of the Company's counsel, accountants and other advisors, (5)
the qualification of
the Securities under securities laws in accordance with the provisions of
Section III(F) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (6) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Permitted Free Writing Prospectus and of the
Prospectus and any amendments or supplements thereto and any costs associated
with electronic delivery of any of the foregoing by the Underwriters to
investors, (7) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (8) the fees and
expenses of any transfer agent or registrar for the Securities, (9) the costs
and expenses of the Company relating to investor presentations on any "road
show" undertaken in connection with the marketing of the Securities, including
without limitation, expenses associated with the production of road show slides
and graphics prepared by third party vendors, fees and expenses of any
consultants engaged in connection with the road show presentations, and travel
and lodging expenses of the representatives and officers of the Company and any
such consultants (but the cost of aircraft and other transportation chartered in
connection with the road show shall be paid for by both the Underwriters and the
Company in equal parts), (10) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the
review by the NASD of the terms of the sale of the Securities (provided that
such reimbursable legal fees shall not exceed $20,000) and (11) the fees and
expenses incurred in connection with the listing of the Securities on the Nasdaq
Global Market.
B. Expenses of the Selling Shareholders. The Selling Shareholders, severally and not jointly and severally, will pay all expenses incident to the performance of their respective obligations under, and the consummation of the transactions contemplated by this Agreement, including (1) any stamp duties, capital duties and stock transfer taxes, if any, payable upon the sale of the Securities to the Underwriters and (2) the fees and disbursements of their respective counsel and other advisors. It being understood, however, that the Company should bear, and the Selling Shareholders shall not be required to pay or to reimburse the Company for, the fees and expenses of Weil, Gotshal & Manges LLP in connection with the transactions contemplated by this Agreement or the cost of any other matters not directly relating to the sale and purchase of the Securities by the Selling Shareholders pursuant to this Agreement.
C. Termination of Agreement. If this Agreement is terminated by the Representative in accordance with the provisions of Section V, Section IX(A)(1) or Section XI hereof, the Company shall reimburse the Underwriters for all of their reasonable out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
D. Allocation of Expenses. The provisions of this Section shall not affect any agreement that the Company and the Selling Shareholders may make for the sharing of such costs and expenses.
V. Conditions of Underwriters' Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company and the Selling Shareholders contained in Section I hereof or in certificates of any officer of the Company or any subsidiary of the Company or on behalf of any Selling Shareholder delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions:
A. Effectiveness of Registration Statement. The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and at Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner and within the time frame required by Rule 424(b) without reliance on Rule 424(b)(8) or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A.
B. Opinion of Counsel for Company. At Closing Time, the Representative shall have received the opinion, dated as of Closing Time, of Weil, Gotshal & Manges LLP, counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit A hereto. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representative. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
C. Opinion of Counsel for the Selling Shareholders. At Closing Time, the Representative shall have received the opinion, dated as of Closing Time, of Weil, Gotshal & Manges LLP, counsel for the Selling Shareholders, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit B hereto. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representative. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
D. Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Fried, Frank, Harris, Shriver & Jacobson LLP, counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters with respect to the matters set forth in clauses (i),
(ii), (v), (vi) (solely as to preemptive or other similar rights arising by
operation of law or under the charter or by-laws of the Company), (viii) through
(x), inclusive, (xi), (xiii) (solely as to the information in the Prospectus
under "Description of Capital Stock--Common Stock") and the penultimate
paragraph of Exhibit A hereto. In giving such opinion such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the law of the
State of New York and the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representative. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
E. Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus or the General Disclosure Package, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise and the Representative shall have received a certificate of the
President or a Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the effect that
(1) there has been no such material adverse change, (2) the representations and
warranties in Section I(A) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (3) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (4) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or, to their
knowledge, threatened by the Commission.
F. Certificate of Selling Shareholders. At Closing Time, the
Representative shall have received a certificate of an Attorney-in-Fact on
behalf of each Selling Shareholder, dated as of Closing Time, to the effect that
(1) the representations and warranties of each Selling Shareholder contained in
Section I(B) hereof are true and correct in all respects with the same force and
effect as though expressly made at and as of Closing Time and (2) each Selling
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to
Closing Time.
G. Accountant's Comfort Letter. At the time of the execution of this Agreement, the Representative shall have received from each of Ernst & Young LLP and BDO Stoy Hayward LLP, a letter dated such date, in form and substance reasonably satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
H. Bring-down Comfort Letter. At Closing Time, the Representative shall have received from each of Ernst & Young LLP and BDO Stoy Hayward LLP, a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (G) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time.
I. Approval of Listing. At Closing Time, the Securities shall have been approved for listing on the Nasdaq Global Market, subject only to official notice of issuance.
J. No Objection. The NASD has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
K. Lock-up Agreements. At the date of this Agreement, the Representative shall have received an agreement substantially in the form of Exhibit C hereto signed by the persons listed on Schedule D hereto.
L. Conditions to Purchase of Option Securities. In the event that the Underwriters exercise their option provided in Section II(B) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company and the Selling Shareholders contained herein and the statements in any certificates furnished by the Company, any subsidiary of the Company and the Selling Shareholders hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representative shall have received:
1. Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section V(E) hereof remains true and correct as of such Date of Delivery.
2. Certificate of Selling Shareholders. A certificate, dated such Date of Delivery, of an Attorney-in-Fact on behalf of each Selling Shareholder confirming that the certificate delivered at Closing Time pursuant to Section V(F) remains true and correct as of such Date of Delivery.
3. Opinion of Counsel for Company. The opinion of Weil, Gotshal & Manges LLP, counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section V(B) hereof.
4. Opinion of Counsel for the Selling Shareholders. The opinion
of Weil, Gotshal & Manges LLP, counsel for the Selling
Shareholders, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to
the Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by
Section V(C) hereof.
5. Opinion of Counsel for Underwriters. The favorable opinion of
Fried, Frank, Harris, Shriver & Jacobson LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by
Section V(D) hereof.
6. Bring-down Comfort Letter. A letter from Ernst & Young LLP and from BDO Stoy Hayward LLP, in form and substance satisfactory to the Representative and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representative pursuant to Section V(G) hereof, except that the "specified date" in the letter furnished pursuant to this paragraph shall be a date not more than five days prior to such Date of Delivery.
M. Additional Documents. At Closing Time and at each Date of Delivery counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained.
N. Termination of Agreement. If any condition specified in this
Section, other than clause (L)(5), shall not have been fulfilled when and as
required to be fulfilled, this Agreement, or, in the case of any condition to
the purchase of Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase the
relevant Option Securities, may be terminated by the Representative by written
notice to the Company and the Selling Shareholders at any time at or prior to
Closing Time or such Date of Delivery, as the case may be, and such termination
shall be without liability of any party to any other party except as provided in
Section IV and except that Sections I, VI, VII and VIII shall survive any such
termination and remain in full force and effect.
VI. Indemnification.
A. Indemnification of Underwriters. (1) The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, as such term is defined in Rule 501(b) under the 1933 Act (each, an "Affiliate"), its selling agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
1. against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430A Information or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
2. against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission; provided that (subject to
Section VI (E) below) any such settlement is effected
with the written consent of the Company.
3. against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending
against any litigation, or any investigation or
proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (1) or
(2) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through Merrill Lynch expressly for use in the Registration Statement (or any amendment thereto), including the Rule 430A Information, or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(2) In addition to and without limitation of the Company's obligation to indemnify Robert W. Baird as an Underwriter, the Company agrees to indemnify and hold harmless the Independent Underwriter, its Affiliates and Selling Agents and each person, if any, who controls the Independent Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and against any and all loss, liability, claim, damage and expense whatsoever, as incurred, incurred as a result of the Independent Underwriter's participation as a "qualified independent underwriter" within the meaning of Rule 2720 of the Conduct Rules of the NASD in connection with the offering of the Securities.
B. Indemnification by Selling Shareholder. Each Selling
Shareholder, severally and not jointly, agrees to indemnify and hold harmless
each Underwriter, its Affiliates and selling agents and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the extent and in the manner set forth in clauses
(A)(1), (2) and (3) above in connection with the offering of the Securities by
the Selling Shareholder; provided, however, that the aggregate indemnification
liability of each Selling Shareholder shall not exceed the net proceeds received
by such person from the sale of the Securities sold by such person in the public
offering pursuant to this Agreement; and provided, further that each Selling
Shareholder shall be liable only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any preliminary prospectus, the Prospectus or such
amendment or supplement in reliance upon and in conformity with information
furnished by such Selling Shareholder expressly for use in such document, it
being understood and agreed that the only such information furnished by the
Selling Shareholders consists of the names and addresses of the Selling
Shareholders.
C. Indemnification of Company, Directors and Officers and Selling Shareholders. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and each Selling Shareholder and each person, if any, who controls any Selling Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and
all loss, liability, claim, damage and expense described in the indemnity contained in subsection (A) (1) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including the Rule 430A Information or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by such Underwriter through Merrill Lynch expressly for use therein.
D. Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section VI(A) (1) above, counsel to the indemnified parties shall be selected by Merrill Lynch, and, in the case of parties indemnified pursuant to Section VI(C) above, counsel to the indemnified parties shall be selected by the Company and the Selling Shareholders. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Any such separate counsel for the Independent Underwriter and such control persons of the Independent Underwriter shall be designated in writing by the Independent Underwriter. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section VI or Section VII hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
E. Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section VI(A) (1) or settlement of any claim in connection with any violation
referred to in Section VI(F) effected without its written consent if (1) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (2) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (3) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such
settlement.
F. Indemnification for Reserved Securities. In connection with the
offer and sale of the Reserved Securities, the Company agrees to indemnify and
hold harmless the Underwriters, their Affiliates and selling agents and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and against any
and all loss, liability, claim, damage and expense (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending, investigating or settling any such action or claim), as incurred, (1)
arising out of the violation of any applicable laws or regulations of foreign
jurisdictions where Reserved Securities have been offered; (2) arising out of
any untrue statement or alleged untrue statement of a material fact contained in
any prospectus wrapper or other material prepared by or with the consent of the
Company for distribution to Invitees in connection with the offering of the
Reserved Securities or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; (3) caused by the failure of any Invitee to
pay for and accept delivery of Reserved Securities which have been orally
confirmed for purchase by any Invitee by the end of the first business day after
the date of the Agreement; or (4) related to, or arising out of or in connection
with, the offering of the Reserved Securities.
G. Other Agreements with Respect to Indemnification. The provisions of this Section shall not affect any agreement among the Company and the Selling Shareholders with respect to indemnification.
VII. Contribution. If the indemnification provided for in Section VI hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Shareholders on the one hand and the Underwriters on the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Selling Shareholders on the one hand and of the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Shareholders on the one hand and the Underwriters on the other hand in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and the Selling Shareholders and the total underwriting discount received by the Underwriters, in each case as set forth on the cover of the Prospectus bear to the aggregate initial public offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company and the Selling Shareholders on the one hand and the Underwriters on the other hand shall be determined by reference to whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Shareholders, it being understood and agreed that the only such information supplied by the Selling Shareholders consists of the names and addresses of the Selling Shareholders, or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriters agree that Robert W. Baird will not receive any additional benefits hereunder for serving as the Independent Underwriter in connection with the offering and sale of the Securities.
The Company, the Selling Shareholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section VII
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
VII. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section VII shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section VII, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section VII, no Selling Shareholder shall be required to contribute any amount in excess of the net proceeds received by such Selling Shareholder from the sale of the Securities in the public offering exceeds the amount of any damages which such Selling Shareholder has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section VII, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter's Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company or any Selling Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company or such Selling Shareholder, as the case may be. The Underwriters' respective obligations to contribute pursuant to this Section VII are several in proportion to the number of Initial Securities set forth opposite their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among the Company and the Selling Shareholders with respect to contribution.
VIII. Representations, Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company or any of its subsidiaries or the Selling Shareholders submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its officers or directors, any person controlling the Company or any person controlling any Selling Shareholder and (ii) delivery of and payment for the Securities.
IX. Termination of Agreement.
A. Termination; General. The Representative may terminate this
Agreement, by written notice to the Company and the Selling Shareholders, at any
time at or prior to Closing Time (1) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus or General Disclosure Package, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (2) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representative, impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities, or (3) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the Nasdaq Global Market, or if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the Nasdaq Global Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (4) a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, or
(5) if a banking moratorium has been declared by either Federal, Delaware or New
York authorities.
B. Liabilities. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections I, V, VI and VIII shall survive such termination and remain in full force and effect.
X. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase the Securities which it or they are obligated to purchase under this Agreement (the "Defaulted Securities"), the Representative shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representative shall not have completed such arrangements within such 24-hour period, then:
1. if the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
2. if the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement or, with respect to any Date of Delivery which occurs after the Closing Time, the obligation of the Underwriters to purchase and of the Company to sell the Option Securities to be purchased and sold on such Date of Delivery shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section X shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company or any Selling Shareholder to sell the
relevant Option Securities, as the case may be, either the (i) Representative or
(ii) the Company and any Selling Shareholder shall have the right to postpone
the Closing Time or the relevant Date of Delivery, as the case may be, for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section X.
XI. Default by one or more of the Selling Shareholders or the Company.
A. If a Selling Shareholder shall fail at Closing Time or at a Date of Delivery to sell and deliver the number of Securities which such Selling Shareholder are obligated to sell hereunder, and the remaining Selling Shareholders do not exercise the right hereby granted to increase, pro-rata or otherwise, the number of Securities to be sold by them hereunder to the total number to be sold by all Selling Shareholders as set forth on Schedule B hereto, then the Underwriters may, at option of the Representative, by notice from the Representative to the Company and the non-defaulting Selling Shareholders, either (i) terminate this Agreement without any liability on the fault of any non-defaulting party except that the provisions of Sections I, IV, VI, VII and VIII shall remain in full force and effect or (ii) elect to purchase the Securities which the non-defaulting Selling Shareholders have agreed to sell hereunder. No action taken pursuant to this Section XI shall relieve any Selling Shareholder so defaulting from liability, if any, in respect of such default.
In the event of a default by any Selling Shareholder as referred to in this Section XI, each of the Representative and the Company shall have the right to postpone Closing Time or Date of
Delivery for a period not exceeding seven days in order to effect any required change in the Registration Statement or Prospectus or in any other documents or arrangements.
B. If the Company shall fail at Closing Time or at the Date of Delivery to sell the number of Securities that it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of any nondefaulting party; provided, however, that the provisions of Sections I, IV, VI, VII and VIII shall remain in full force and effect. No action taken pursuant to this Section shall relieve the Company from liability, if any, in respect of such default.
XII. Tax Disclosure. Notwithstanding any other provision of this Agreement, immediately upon commencement of discussions with respect to the transactions contemplated hereby, the Company (and each employee, representative or other agent of the Company) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to the Company relating to such tax treatment and tax structure. For purposes of the foregoing, the term "tax treatment" is the purported or claimed federal income tax treatment of the transactions contemplated hereby, and the term "tax structure" includes any fact that may be relevant to understanding the purported or claimed federal income tax treatment of the transactions contemplated hereby.
XIII. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representative at 4 World Financial Center, New York, New York 10080, attention of David Iwan with a copy to Fried, Frank, Harris, Shriver & Jacobson LLP at One New York Plaza, New York, New York 10004, attention of Stuart Gelfond; notices to the Company shall be directed to it at 14 Haywarad Street, Quincy, Massachusetts 02171, attention of Michael L. Hurt, with a copy to Weil, Gotshal & Manges LLP, 201 Redwood Shores Parkway, Redwood Shores, California 94065, attention of Craig W. Adas; and notices to the Selling Shareholders shall be directed to Genstar Capital, Four Embarcadero Center, Suite 1900, San Francisco, California 94111, attention of Jean-Pierre Conte, with a copy to Weil, Gotshal & Manges LLP, 201 Redwood Shores Parkway, Redwood Shores, California 94065, attention of Craig W. Adas.
XIV. No Advisory or Fiduciary Relationship. Each of the Company and each Selling Shareholder acknowledges and agrees that (A) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an arm's-length commercial transaction between the Company and the Selling Shareholder, on the one hand, and the several Underwriters, on the other hand, (B) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or any Selling Shareholder, or its respective stockholders, creditors, employees or any other party, (C) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company or any Selling Shareholder with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any Selling Shareholder on other matters) and no Underwriter has any obligation to the Company or any Selling Shareholder
with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (D) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of each of the Company and each Selling Shareholder, and (E) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company and each of the Selling Shareholders has consulted its own respective legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
XV. Parties. This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Company and the Selling Shareholders and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Company and the Selling Shareholders and their respective successors and the controlling persons and officers and directors referred to in Sections VI and VII and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Company and the Selling Shareholders and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
XVI. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
XVII. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO CITY TIME.
XVIII. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
XIX. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Attorney-in-Fact for the Selling Shareholders a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
ALTRA HOLDINGS, INC.
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
JEFFERIES & COMPANY
WACHOVIA SECURITIES
ROBERT W. BAIRD & CO.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
For themselves and as Representative of the other Underwriters named in Schedule A hereto.
SCHEDULE A
Number of Name of Underwriter Initial Securities ------------------ Merrill Lynch, Pierce, Fenner & Smith Incorporated..................................................... Jefferies & Company............................................................. Wachovia Securities ............................................... Robert W. Baird & Co. Total.................................................................. ================= |
Sch A-1
SCHEDULE B
Number of Initial Maximum Number of Option Securities to be Sold Securities to Be Sold --------------------- ------------------------- ALTRA HOLDINGS, INC. Genstar Capital Partners III, L.P. Stargen III, L.P. Caisse de depot et placement du Quebec Frank Bauchiero MKC Worldwide Frank Bauchiero Larry McPherson Lee Hess Thomas Hunt Michael L. Hurt Carl Christenson David Wall William J. Duff Edward L. Novotny Gerald Ferris Craig Schuele Donald S. Wierbinski Thomas Tatarczuch Mark Stuebe David Zietlow David J. Ebling Timothy McGowan Virginia Christenson Total............................... |
SCHEDULE C
ALTRA HOLDINGS, INC.
[ ] Shares of Common Stock
(Par Value $0.001 Per Share)
1. The initial public offering price per share for the Securities, determined as provided in said Section II, shall be $[ ].
2. The purchase price per share for the Securities to be paid by the several Underwriters shall be $[ ], being an amount equal to the initial public offering price set forth above less $ [ ] per share; provided that the purchase price per share for any Option Securities purchased upon the exercise of the overallotment option described in Section II(B) shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities.
[SCHEDULE D]
[List of persons and entities
subject to lock-up]
[SCHEDULE E]
[SPECIFY EACH ISSUER GENERAL USE FREE WRITING PROSPECTUS]
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION V(B)
Exhibit B
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION V(C)
[FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS PURSUANT TO
SECTION V(K)]
Exhibit C
[ , 2006]
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
JEFFERIES & COMPANY
WACHOVIA SECURITIES
ROBERT W. BAIRD & CO.
as Representative of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
c/o Merrill Lynch & Co. Merrill Lynch, Pierce, Fenner & Smith Incorporated |
4 World Financial Center
New York, New York 10080
Re: Proposed Public Offering by Altra Holdings, Inc.
Dear Sirs:
The undersigned, a stockholder, officer, director and/or employee of Altra Holdings, Inc., a Delaware corporation (the "Company"), understands that Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), Jefferies & Company, Wachovia Securities and Robert W. Baird & Co., propose to enter into a Purchase Agreement (the "Purchase Agreement") with the Company and the Selling Shareholders providing for the public offering of shares (the "Public Offering") of the Company's common stock, par value $0.001 per share (the "Common Stock"). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder, officer, director and/or employee of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Purchase Agreement that, during a period of 180 days from the date of the Purchase Agreement, the undersigned will not, without the prior written consent of Merrill Lynch, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose of or transfer any shares of the Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or file, or cause to be filed, any registration statement under the Securities Act of 1933, as amended, with respect to any of the foregoing (collectively, the "Lock-Up Securities") or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or
otherwise; provided, however, that the foregoing restrictions will not apply to transfers of the Lock-Up Securities (A) as a bona fide gift, provided that each donee thereof agrees to be bound in writing by the restrictions set forth herein, or (B) to any trust or other entity formed for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the trustee of the trust or authorized representative of such other entity, as applicable, agrees to be bound in writing by the restrictions set forth herein.
Notwithstanding the foregoing, the undersigned may sell shares of Common Stock purchased by the undersigned on the open market following the Public Offering if and only if (i) such sales are not required to be reported in any public report or filing with the Securities Exchange Commission, or otherwise and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales.
Notwithstanding the foregoing, if:
(1) during the last 17 days of the 180-day lock-up period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the 180-day lock-up period, the Company announces that it will release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the 180-day lock-up period;
the restrictions imposed by this lock-up agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, as applicable, unless Merrill Lynch waives, in writing, such extension.
The undersigned hereby acknowledges and agrees that written
notice of any extension of the 180-day lock-up period pursuant to the previous
paragraph will be delivered by Merrill Lynch to the Company (in accordance with
Section XII of the Purchase Agreement) and that any such notice properly
delivered will be deemed to have been given to, and received by, the
undersigned. The undersigned further agrees that, prior to engaging in any
transaction or taking any other action that is subject to the terms of this
lock-up agreement during the period from the date of this lock-up agreement to
and including the 34th day following the expiration of the initial 180-day
lock-up period, it will give notice thereof to the Company and will not
consummate such transaction or take any such action unless it has received
written confirmation from the Company that the 180-day lock-up period (as may
have been extended pursuant to the previous paragraph) has expired.
The undersigned also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent and registrar against the transfer of the Lock-Up Securities except in compliance with the foregoing restrictions.
The obligation of the undersigned shall terminate if the Public Offering shall not have been effected on or before February 15, 2007.
Very truly yours,
EXHIBIT 3.1
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ALTRA HOLDINGS, INC.
Altra Holdings, Inc., a corporation organized and existing under the laws of the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Altra Holdings, Inc. The Corporation was originally formed as CPT Acquisition Corp. on October 20, 2004 and changed its name to Altra Holdings, Inc. pursuant to amendments to its certificate of incorporation filed on November 16, 2004 and November 19, 2004.
2. The Corporation filed an amended and restated certificate of incorporation with the Secretary of State of the State of Delaware on November 30, 2004 (the "Certificate of Incorporation").
3. The following amendment to the Certificate of Incorporation of the Corporation has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
4. Paragraph A of Article IV of the Certificate of Incorporation of the Corporation is hereby amended to add the following paragraph immediately after the second paragraph of Article IV:
"Upon the filing of this Certificate of Incorporation with the Delaware Secretary of State (the "EFFECTIVE DATE"), each two shares of the Common Stock of the Corporation issued and outstanding shall be reclassified and combined into one (1) share of Common Stock of the Corporation. There shall be no fractional shares issued. Stockholders who otherwise would be entitled to receive fractional shares shall be entitled to receive a cash payment in lieu thereof at a price equal to the fraction to which the stockholder would otherwise be entitled multiplied by the price per share of the Common Stock in the initial public offering of the Common Stock; provided, however, that in the event that the initial public offering of the Common Stock does not occur within ten (10) business days after the Effective Date, the Board of Directors shall determine the fair market value of one share of Common Stock as of the Effective Date for purposes of such cash payment. The ownership of a fractional interest will not give the holder thereof any voting, dividend or other rights except to receive payment therefore as described herein."
5. Paragraph B(4)(b) of Article IV of the Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety as set forth below:
"AUTOMATIC CONVERSION. Each share of Series A Preferred Stock shall automatically be converted into shares of Common Stock at the Conversion Price at the time in effect for such share immediately upon the earlier of (i) except as provided below in Section 4(c), this corporation's sale of its Common Stock in a firm commitment underwritten public offering pursuant to a registration statement under the Securities Act of 1933, as amended, or (ii) the date specified by written consent or affirmative vote of the holders of an aggregate of more than 50% of the then outstanding shares of the Series A Preferred Stock."
THIS AMENDMENT TO THE CERTIFICATE OF INCORPORATION is executed as of
this ____ day of __________, 2006.
ALTRA HOLDINGS, INC.
By:____________________________________
Michael L. Hurt
Chief Executive Officer
Exhibit 3.2
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ALTRA HOLDINGS, INC.
Altra Holdings, Inc., a corporation organized and existing under the laws of the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Altra Holdings, Inc. The Corporation was originally formed as CPT Acquisition Corp. on October 20, 2004 and changed its name to Altra Holdings, Inc. pursuant to amendments to its certificate of incorporation filed on November 16, 2004 and November 19, 2004. The Corporation filed an amended and restated certificate of incorporation with the Secretary of State of the State of Delaware on November 30, 2004 (the "Previous Certificate").
2. This Second Amended and Restated Certificate of Incorporation (the "Certificate of Incorporation") amends and restates the Previous Certificate, as amended to date, and has been duly adopted in accordance with Sections 242, 245 and 228 of the General Corporation Law of the State of Delaware (the "DGCL").
3. The Previous Certificate is hereby amended and restated in its entirety to read as follows:
ARTICLE I
The name of the Corporation is Altra Holdings, Inc.
ARTICLE II
The address of the Corporation's registered office in the State of Delaware is 9 East Loockerman Street, Suite 1B, City of Dover, 19901, County of Kent, State of Delaware. The name of the registered agent of the Corporation in the State of Delaware at such address is National Registered Agents, Inc.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. The Corporation will have perpetual existence.
ARTICLE IV
CAPITAL STOCK
The total number of shares of capital stock which the Corporation shall have authority to issue is 100,000,000 shares, of which (i) 90,000,000 shares shall be a class designated as common stock, par value $0.001 per share (the "Common Stock"), and (ii) 10,000,000 shares shall be a class designated as undesignated preferred stock, par value $0.001 per share (the "Preferred Stock").
The number of authorized shares of Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote irrespective of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of Common Stock or Preferred Stock voting separately as a class shall be required therefor.
The powers, preferences and rights of, and the qualifications, limitations and restrictions upon, each class or series of stock shall be determined in accordance with, or as set forth below in, this Article IV.
A. COMMON STOCK
Subject to all the rights, powers and preferences of the Preferred Stock and except as provided by law or in this Article IV (or in any certificate of designations of any series of Preferred Stock):
(a) except as otherwise provided by the DGCL, the holders of the Common Stock shall have the exclusive right to vote for the election of directors of the Corporation (the "Directors") and on all other matters requiring stockholder action, each outstanding share entitling the holder thereof to one vote on each matter properly submitted to the stockholders of the Corporation for their vote; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation (or on any amendment to a certificate of designations of any series of Preferred Stock) that alters or changes the powers, preferences, rights or other terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled to vote, either separately or together with the holders of one or more other such series, on such amendment pursuant to this Certificate of Incorporation (or pursuant to a certificate of designations of any series of Preferred Stock) or pursuant to the DGCL;
(b) dividends may be declared and paid or set apart for payment upon the Common Stock out of any assets or funds of the Corporation legally available for the payment of dividends, but only when and as declared by the Board of Directors or any authorized committee thereof; and
(c) upon the voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the net assets of the Corporation shall be distributed pro rata to the holders of the Common Stock.
B. PREFERRED STOCK
(a) The Preferred Stock may be issued from time to time in one or more classes or series, the shares of each class or series to have such designations and powers, preferences, and rights, and qualifications, limitations, and restrictions thereof, as are stated and expressed herein and in the resolution or resolutions providing for the issue of such class or series adopted by the Board of Directors of the Corporation as hereafter prescribed.
(b) Authority is hereby expressly granted to and vested in the Board of Directors of the Corporation to authorize the issuance of the Preferred Stock from time to time in one or more classes or series, and with respect to each class or series of the Preferred Stock, to fix and state by the resolution or resolutions from time to time adopted providing for the issuance thereof the following:
(i) whether or not the class or series is to have voting rights, full, special, or limited, or is to be without voting rights, and whether or not such class or series is to be entitled to vote as a separate class either alone or together with the holders of one or more other classes or series of stock;
(ii) the number of shares to constitute the class or series and the designations thereof;
(iii) the preferences, and relative participating, optional, or other special rights, if any, and the qualifications, limitations, or restrictions thereof, if any, with respect to any class or series;
(iv) whether or not the shares of any class or series shall be redeemable at the option of the Corporation or the holders thereof or upon the happening of any specified event, and, if redeemable, the redemption price or prices (which may be payable in the form of cash, notes, securities, or other property), and the time or times at which, and the terms and conditions upon which, such shares shall be redeemable and the manner of redemption;
(v) whether or not the shares of a class or series shall be subject to the operation of retirement or sinking funds to be applied to the purchase or redemption of such shares for retirement, and, if such retirement or sinking fund or funds are to be established, the annual amount thereof, and the terms and provisions relative to the operation thereof;
(vi) the dividend rate, whether dividends are payable in cash, stock of the Corporation, or other property, the conditions upon which and the times when such dividends are payable, the preference to or the relation to the payment of dividends payable on any other class or classes or series of stock, whether or not such dividends shall be cumulative or noncumulative, and if cumulative, the date or dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the amounts thereof which the holders of any class or series thereof shall be entitled to receive upon the
voluntary or involuntary dissolution of, or upon any distribution of the assets of, the Corporation;
(viii) whether or not the shares of any class or series, at the option of the Corporation or the holder thereof or upon the happening of any specified event, shall be convertible into or exchangeable for, the shares of any other class or classes or of any other series of the same or any other class or classes of stock, securities, or other property of the Corporation and the conversion price or prices or ratio or ratios or the rate or rates at which such exchange may be made, with such adjustments, if any, as shall be stated and expressed or provided for in such resolution or resolutions; and
(ix) such other special rights and protective provisions with respect to any class or series as may to the Board of Directors of the Corporation deem advisable.
(c) The shares of each class or series of the Preferred Stock may vary from the shares of any other class or series thereof in any or all of the foregoing respects. The Board of Directors of the Corporation may increase the number of shares of the Preferred Stock designated for any existing class or series by a resolution adding to such class or series authorized and unissued shares of the Preferred Stock not designated for any other class or series. The Board of Directors of the Corporation may decrease the number of shares of the Preferred Stock designated for any existing class or series by a resolution subtracting from such class or series authorized and unissued shares of the Preferred Stock designated for such existing class or series, and the shares so subtracted shall become authorized, unissued, and undesignated shares of the Preferred Stock.
C. GENERAL
Subject to the foregoing provisions of this Certificate of Incorporation, the Corporation may issue shares of its Preferred Stock and Common Stock from time to time for such consideration (not less than the par value thereof) as may be fixed by the Board of Directors of the Corporation, which is expressly authorized to fix the same in its absolute and uncontrolled discretion subject to the foregoing conditions. Shares so issued for which the consideration shall have been paid or delivered to the Corporation shall be deemed fully paid stock and shall not be liable to any further call or assessment thereon, and the holders of such shares shall not be liable for any further payments in respect of such shares.
The Corporation shall have authority to create and issue rights and options entitling their holders to purchase shares of the Corporation's capital stock of any class or series or other securities of the Corporation, and such rights and options shall be evidenced by instrument(s) approved by the Board of Directors of the Corporation. The Board of Directors of the Corporation shall be empowered to set the exercise price, duration, times for exercise, and other terms of such options or rights; provided, however, that the consideration to be received for any shares of capital stock subject thereto shall not be less than the par value thereof.
ARTICLE V
STOCKHOLDER ACTION
1. Action without Meeting. Except as otherwise provided herein, any action required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders and may not be taken or effected by a written consent of stockholders in lieu thereof.
2. Special Meetings. Except as otherwise required by statute and subject to the rights, if any, of the holders of any series of Preferred Stock, special meetings of the stockholders of the Corporation may be called only by the Board of Directors acting pursuant to a resolution approved by the affirmative vote of a majority of the Directors then in office. Only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders of the Corporation.
ARTICLE VI
DIRECTORS
1. General. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors except as otherwise provided herein or required by law.
2. Election of Directors. Election of Directors need not be by written ballot unless the Bylaws of the Corporation (the "Bylaws") shall so provide.
3. Number of Directors; Term of Office. The number of Directors of the Corporation shall be fixed solely by resolution duly adopted from time to time by the Board of Directors. At each annual meeting of stockholders, Directors of the Corporation shall be elected to hold office until the expiration of the term for which they are elected, and until their successors have been duly elected and qualified or until their earlier resignation, death or removal; except that if any such election shall be not so held, such election shall take place at stockholders' meeting called and held in accordance with the DGCL. No decrease in the number of Directors shall shorten the term of any incumbent Director.
Notwithstanding the foregoing, whenever, pursuant to the provisions of Article IV of this Certificate of Incorporation, the holders of any one or more series of Preferred Stock shall have the right, voting separately as a series or together with holders of other such series, to elect Directors at an annual or special meeting of stockholders, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of this Certificate of Incorporation and any certificate of designations applicable thereto.
4. Vacancies. Subject to the rights, if any, of the holders of any series of Preferred Stock to elect Directors and to fill vacancies in the Board of Directors relating thereto, any and all vacancies in the Board of Directors, however occurring, including, without limitation, by reason of an increase in size of the Board of Directors, or the death, resignation, disqualification or removal of a Director, shall be filled solely by the affirmative vote of a majority of the remaining Directors then in office, even if less than a quorum of the Board of Directors. Any
Director appointed in accordance with the preceding sentence shall hold office until such Director's successor shall have been duly elected and qualified or until his or her earlier resignation, death or removal. In the event of a vacancy in the Board of Directors, the remaining Directors, except as otherwise provided by law, shall exercise the powers of the full Board of Directors until the vacancy is filled.
5. Removal. Subject to the rights, if any, of any series of Preferred Stock to elect Directors and to remove any Director whom the holders of any such stock have the right to elect, any Director (including persons elected by Directors to fill vacancies in the Board of Directors) may be removed from office, with or without cause, by the affirmative vote of the holders of a majority of the shares then entitled to vote at an election of Directors.
ARTICLE VII
LIMITATION OF LIABILITY
A Director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except for liability (a) for any breach of the Director's duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL or (d) for any transaction from which the Director derived an improper personal benefit. If the DGCL is amended after the effective date of this Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of Directors, then the liability of a Director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Any repeal or modification of this Article VII, by either (i) the stockholders of the Corporation or (ii) an amendment to the DGCL, shall not adversely affect any right or protection existing at the time of such repeal or modification with respect to any acts or omissions occurring before such repeal or modification of a person serving as a Director at the time of such repeal or modification.
ARTICLE VIII
INDEMNIFICATION
The Corporation shall indemnify any person who was, is, or is threatened to be made a party to a proceeding (as hereinafter defined) by reason of the fact that he or she (i) is or was a director of the Corporation or (ii) while a director of the Corporation, is or was serving at the request of the Corporation as a director (or similar role) of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan, or other enterprise to the fullest extent permitted under the DGCL. Such right shall be a contract right and as such shall run to the benefit of any director who is elected and accepts the position of director of the Corporation or elects to continue to serve as a director of the Corporation while this Article VIII is in effect. Any repeal or amendment of this Article VIII shall be prospective only and shall not limit the rights of any such director or the obligations of the Corporation with respect to any claim arising from or related to the services of such director in any of the foregoing capacities prior to any such repeal or amendment to this Article VIII. Such right shall
include the right to be paid by the Corporation expenses incurred in defending any such proceeding in advance of its final disposition to the maximum extent permitted under the DGCL. If a claim for indemnification or advancement of expenses hereunder is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, the claimant shall also be entitled to be paid the expenses of prosecuting such claim. It shall be a defense to any such action that such indemnification or advancement of costs of defense are not permitted under the DGCL, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to have made its determination prior to the commencement of such action that indemnification of, or advancement of costs of defense to, the claimant is permissible in the circumstances nor an actual determination by the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) that such indemnification or advancement is not permissible shall be a defense to the action or create a presumption that such indemnification or advancement is not permissible. In the event of the death of any person having a right of indemnification under the foregoing provisions, such right shall inure to the benefit of his or her heirs, executors, administrators, and personal representatives. The rights conferred above shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, bylaw, resolution of stockholders or directors, agreement, or otherwise.
As used herein, the term "proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, any appeal in such an action, suit, or proceeding, and any inquiry or investigation that could lead to such an action, suit, or proceeding.
ARTICLE IX
BUSINESS OPPORTUNITIES
To the fullest extent permitted by Section 122(17) of the DGCL and except
as may be otherwise expressly agreed in writing by the Corporation and Genstar
Capital, LLC and its affiliates ("Genstar"), the Corporation, on behalf of
itself and its subsidiaries, renounces any interest or expectancy of the
Corporation and its subsidiaries in, or in being offered an opportunity to
participate in, business opportunities, that are from time to time presented to
Genstar or any of its respective officers, directors, agents, stockholders,
members, partners, affiliates and subsidiaries (other than the Corporation and
its subsidiaries), even if the opportunity is one that the Corporation or its
subsidiaries might reasonably be deemed to have pursued or had the ability or
desire to pursue if granted the opportunity to do so and no such person shall be
liable to the Corporation or any of its subsidiaries for breach of any fiduciary
or other duty, as a director or officer or otherwise, by reason of the fact that
such person pursues or acquires such business opportunity, directs such business
opportunity to another person or fails to present such business opportunity, or
information regarding such business opportunity, to the Corporation or its
subsidiaries unless, in the case of any such person who is a director or officer
of the Corporation, such business opportunity is expressly offered to such
director or officer in writing solely in his or her capacity as a director or
officer of the Corporation.
Neither the alteration, amendment or repeal of this Article IX nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article IX shall eliminate or reduce the effect of this Article IX in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit or claim that, but for this Article IX, would accrue or arise, prior to such alteration, amendment, repeal or adoption.
ARTICLE X
AMENDMENT OF BYLAWS
1. Amendment by Directors. Except as otherwise provided by law, the Bylaws of the Corporation may be amended or repealed by the Board of Directors by the affirmative vote of a majority of the Directors then in office.
2. Amendment by Stockholders. The Bylaws of the Corporation may be amended or repealed at any annual meeting of stockholders, or special meeting of stockholders called for such purpose as provided in the Bylaws, by the affirmative vote of a majority of the outstanding shares entitled to vote on such amendment or repeal, voting together as a single class.
[End of Text]
THIS SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
is executed as of this ____ day of __________, 2006.
ALTRA HOLDINGS, INC.
By: -----------------------------
Michael L. Hurt
Chief Executive Officer
Exhibit 3.3
AMENDED AND RESTATED
BYLAWS
OF
ALTRA HOLDINGS, INC.
A DELAWARE CORPORATION
EFFECTIVE: DECEMBER __, 2006
TABLE OF CONTENTS
Page ----- ARTICLE I - Stockholders..........................................................................................1 SECTION 1. Annual Meeting...............................................................................1 SECTION 2. Notice of Stockholder Business and Nominations...............................................1 SECTION 3. Special Meetings.............................................................................3 SECTION 4. Notice of Meetings; Adjournments.............................................................4 SECTION 5. Quorum.......................................................................................4 SECTION 6. Voting and Proxies...........................................................................5 SECTION 7. Action at Meeting............................................................................5 SECTION 8. Stockholder Lists............................................................................5 SECTION 9. Presiding Officer............................................................................6 SECTION 10. Inspectors of Elections.....................................................................6 SECTION 11. Conduct of Meetings.........................................................................6 ARTICLE II - Directors............................................................................................7 SECTION 1. Powers.......................................................................................7 SECTION 2. Number and Terms.............................................................................7 SECTION 3. Qualification................................................................................7 SECTION 4. Vacancies....................................................................................7 SECTION 5. Removal......................................................................................7 SECTION 6. Resignation..................................................................................7 SECTION 7. Regular Meetings.............................................................................7 SECTION 8. Special Meetings.............................................................................7 SECTION 9. Notice of Meetings...........................................................................8 SECTION 10. Quorum......................................................................................8 SECTION 11. Action at Meeting...........................................................................8 SECTION 12. Action by Consent...........................................................................8 SECTION 13. Manner of Participation.....................................................................9 SECTION 14. Committees..................................................................................9 SECTION 15. Compensation of Directors...................................................................9 SECTION 16. Chairman of the Board.......................................................................9 ARTICLE III - Officers............................................................................................9 SECTION 1. Enumeration..................................................................................9 SECTION 2. Election....................................................................................10 SECTION 3. Qualification...............................................................................10 SECTION 4. Tenure......................................................................................10 SECTION 5. Resignation.................................................................................10 SECTION 6. Removal.....................................................................................10 SECTION 7. Absence or Disability.......................................................................10 SECTION 8. Vacancies...................................................................................10 SECTION 9. Chairman of the Board.......................................................................10 SECTION 10. Chief Executive Officer....................................................................10 SECTION 11. President..................................................................................11 SECTION 12. Chief Financial Officer....................................................................11 SECTION 13. Chief Operating Officer....................................................................11 |
Page ----- SECTION 14. Vice Presidents and Assistant Vice Presidents..............................................11 SECTION 15. Treasurer and Assistant Treasurers.........................................................11 SECTION 16. Secretary and Assistant Secretaries........................................................12 SECTION 17. Other Powers and Duties....................................................................12 SECTION 18. Compensation...............................................................................12 ARTICLE IV - Capital Stock.......................................................................................12 SECTION 1. Certificates of Stock.......................................................................12 SECTION 2. Transfers...................................................................................13 SECTION 3. Record Holders..............................................................................13 SECTION 4. Record Date.................................................................................13 SECTION 5. Replacement of Certificates.................................................................13 ARTICLE V - Indemnification......................................................................................14 SECTION 1. Definitions.................................................................................14 SECTION 2. Indemnification of Directors and Officers...................................................15 SECTION 3. Indemnification of Non-Officer Employees....................................................16 SECTION 4. Good Faith..................................................................................16 SECTION 5. Advancement of Expenses to Directors Prior to Final Disposition.............................16 SECTION 6. Advancement of Expenses to Officers and Non-Officer Employees Prior to Final Disposition....................................................................................17 SECTION 7. Contractual Nature of Rights................................................................17 SECTION 8. Non-Exclusivity of Rights...................................................................18 SECTION 9. Insurance...................................................................................18 SECTION 10. Other Indemnification......................................................................18 ARTICLE VI - Miscellaneous Provisions............................................................................19 SECTION 1. Fiscal Year.................................................................................19 SECTION 2. Seal........................................................................................19 SECTION 3. Dividends...................................................................................19 SECTION 4. Execution of Instruments....................................................................19 SECTION 5. Checks, Drafts, or Orders...................................................................19 SECTION 6. Voting of Securities........................................................................19 SECTION 7. Resident Agent..............................................................................19 SECTION 8. Corporate Records...........................................................................19 SECTION 9. Certificate.................................................................................20 SECTION 10. Amendment of Bylaws........................................................................20 SECTION 11. Notices....................................................................................20 SECTION 12. Waivers....................................................................................20 SECTION 13. Inconsistent Provisions....................................................................20 |
AMENDED AND RESTATED
BYLAWS
OF
ALTRA HOLDINGS, INC.
A DELAWARE CORPORATION
(THE "CORPORATION")
ARTICLE I
Stockholders
SECTION 1. Annual Meeting. The annual meeting of stockholders (any such meeting being referred to in these Bylaws as an "Annual Meeting") shall be held at the hour, date and place within or outside of the United States which is fixed by the Board of Directors, which time, date and place may subsequently be changed at any time by vote of the Board of Directors. If no Annual Meeting has been held for a period of thirteen months after the Corporation's last Annual Meeting, a special meeting in lieu thereof may be held, and such special meeting shall have, for the purposes of these Bylaws or otherwise, all the force and effect of an Annual Meeting. Any and all references hereafter in these Bylaws to an Annual Meeting or Annual Meetings also shall be deemed to refer to any special meeting(s) in lieu thereof. The stockholders of the Corporation may not take any action by written consent in lieu of a meeting, and must take any actions at a duly called annual or special meeting of stockholders and the power of stockholders to consent in writing without a meeting is specifically denied.
SECTION 2. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board of Directors of the Corporation and the proposal of business to be considered by the stockholders may be made at an Annual Meeting (a) pursuant to the Corporation's notice of meeting, (b) by or at the direction of the Board of Directors or (c) by any stockholder of the Corporation who was a stockholder of record at the time of giving of notice provided for in this Bylaw, who is entitled to vote at the meeting, who is present (in person or by proxy) at the meeting and who complies with the notice procedures set forth in this Bylaw. In addition to the other requirements set forth in this Bylaw, for any proposal of business to be considered at an Annual Meeting, it must be a proper subject for action by stockholders of the Corporation under Delaware law.
(ii) For nominations or other business to be properly brought
before an Annual Meeting by a stockholder pursuant to clause (c) of paragraph
(a)(i) of this Bylaw, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year's Annual Meeting; provided, however, that in the event that the date of the Annual Meeting is advanced by more than 30 days before or delayed by more than 60 days after such anniversary date, notice by the stockholder to be timely must be so delivered not later than the close of business on the later of the 90th day prior to such Annual Meeting or the 10th day following the day on which Public Announcement of the date of such meeting is first made. Such stockholder's notice shall set forth: (a) as to each person whom the stockholder proposes to nominate for election or reelection as a director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act") (including such person's written consent to being named in the proxy statement as a nominee and serving as a director if elected); (b) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting, any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made, and the names and addresses of other stockholders known by the stockholder proposing such business to support such proposal, and the class and number of shares of the Corporation's capital stock beneficially owned by such other stockholders; and (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (1) the name and address of such stockholder, as they appear on the Corporation's books, and of such beneficial owner, (2) the class and number of shares of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner, (3) a description of all arrangements or understandings between such beneficial owner and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made, and (4) a representation whether the beneficial owner intends or is part of a group that intends (A) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation's outstanding capital stock required to elect the nominee and/or (B) otherwise to solicit proxies from stockholders in support of such nomination.
(iii) Notwithstanding anything in the second sentence of paragraph (a)(ii) of this Section 2 to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation is increased and there is no Public Announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the Corporation at least 85 days prior to the first anniversary of the preceding year's Annual Meeting, a stockholder's notice required by this Bylaw shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such Public Announcement is first made by the Corporation.
(b) General.
(i) Only such persons who are nominated in accordance with the provisions of this Bylaw shall be eligible for election and to serve as directors and only such business shall be conducted at an Annual Meeting as shall have been brought before the meeting in accordance
with the provisions of this Bylaw. The Board of Directors or a designated committee thereof shall have the power to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the provisions of this Bylaw. If neither the Board of Directors nor such designated committee makes a determination as to whether any stockholder proposal or nomination was made in accordance with the provisions of this Bylaw, the presiding officer of the Annual Meeting shall have the power and duty to determine whether the stockholder proposal or nomination was made in accordance with the provisions of this Bylaw. If the Board of Directors or a designated committee thereof or the presiding officer, as applicable, determines that any stockholder proposal or nomination was not made in accordance with the provisions of this Bylaw, such proposal or nomination shall be disregarded and shall not be presented for action at the Annual Meeting.
(ii) Except as otherwise required by law, nothing in this
Section 2 shall obligate the Corporation or the Board of Directors to include in
any proxy statement or other stockholder communication distributed on behalf of
the Corporation or the Board of Directors information with respect to any
nominee for director submitted by a stockholder.
(iii) Notwithstanding the foregoing provisions of this Section 2, if the stockholder (or a qualified representative of the stockholder) does not appear at the Annual or special meeting of stockholders of the Corporation to present a nomination, such nomination shall be disregarded, notwithstanding the proxies in respect of such vote that may have been received by the Corporation. For purposes of this Section 2, to be considered a qualified representative of the stockholder, a person must be authorized by a written instrument executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the Annual or special meeting of stockholders and such person must produce such written instrument or electronic transmission, or a reliable reproduction of the written instrument or electronic transmission, at the Annual or special meeting of stockholders.
(iv) For purposes of this Bylaw, "Public Announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(v) Notwithstanding the foregoing provisions of this Bylaw, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Bylaw. Nothing in this Bylaw shall be deemed to affect any rights of (a) stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or (b) the holders of any series of Undesignated Preferred Stock to elect directors under specified circumstances.
SECTION 3. Special Meetings. Except as otherwise required by statute and subject to the rights, if any, of the holders of any series of Undesignated Preferred Stock, special meetings of the stockholders of the Corporation may be called only by the Board of Directors acting pursuant to a resolution approved by the affirmative vote of a majority of the directors then in office. Only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders of the Corporation.
SECTION 4. Notice of Meetings; Adjournments. A notice of each Annual Meeting stating the hour, date and place, if any, of such Annual Meeting shall be given not less than 10 days nor more than 60 days before the Annual Meeting, to each stockholder entitled to vote thereat by delivering such notice to such stockholder or by mailing it, postage prepaid, addressed to such stockholder at the address of such stockholder as it appears on the Corporation's stock transfer books.
Notice of all special meetings of stockholders shall be given in the same manner as provided for Annual Meetings, except that the notice of all special meetings shall state the purpose or purposes for which the meeting has been called.
Notice of an Annual Meeting or special meeting of stockholders need not be given to a stockholder if a waiver of notice is executed before or after such meeting by such stockholder or if such stockholder attends such meeting, unless such attendance is for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting was not lawfully called or convened.
The Board of Directors may postpone and reschedule any previously scheduled Annual Meeting or special meeting of stockholders and any record date with respect thereto, regardless of whether any notice or public disclosure with respect to any such meeting has been sent or made pursuant to Section 2 of this Article I of these Bylaws or otherwise. In no event shall the Public Announcement of an adjournment, postponement or rescheduling of any previously scheduled meeting of stockholders commence a new time period for the giving of a stockholder's notice under Section 2 of this Article I of these Bylaws.
When any meeting is convened, the presiding officer may adjourn the meeting if (a) no quorum is present for the transaction of business, (b) the Board of Directors determines that adjournment is necessary or appropriate to enable the stockholders to consider fully information which the Board of Directors determines has not been made sufficiently or timely available to stockholders, or (c) the Board of Directors determines that adjournment is otherwise in the best interests of the Corporation. When any Annual Meeting or special meeting of stockholders is adjourned to another hour, date or place, notice need not be given of the adjourned meeting other than an announcement at the meeting at which the adjournment is taken of the hour, date and place, if any, to which the meeting is adjourned and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting; provided, however, that if the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting shall be given to each stockholder of record entitled to vote thereat and each stockholder who, by law or under the Certificate of Incorporation of the Corporation (as the same may hereafter be amended and/or restated, the "Certificate") or these Bylaws, is entitled to such notice.
SECTION 5. Quorum. A majority of the shares entitled to vote, present in person or represented by proxy, shall constitute a quorum at any meeting of stockholders. If less than a quorum is present at a meeting, the holders of voting stock representing a majority of the voting power present at the meeting or the presiding officer may adjourn the meeting from time to time,
and the meeting may be held as adjourned without further notice, except as provided in Section 4 of this Article I. At such adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally noticed. The stockholders present at a duly constituted meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. When a specified item of business requires a vote by a class or series (if the Corporation shall then have outstanding shares of more than one class or series) voting as a class or series, the holders of a majority of the shares of such class or series shall constitute a quorum (as to such class or series) for the transaction of such item of business.
SECTION 6. Voting and Proxies. Stockholders shall have one vote for
each share of stock entitled to vote owned by them of record according to the
stock ledger of the Corporation, unless otherwise provided by law or by the
Certificate. Stockholders may vote either (a) in person, (b) by written proxy or
(c) by a transmission permitted by Section 212(c) of the Delaware General
Corporation Law ("DGCL"). Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission permitted by Section 212(c)
of the DGCL may be substituted for or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission. Proxies shall be filed in accordance with the
procedures established for the meeting of stockholders. At each meeting of the
stockholders, and before any voting commences, all proxies filed at or before
the meeting shall be submitted to and examined by the secretary or a person
designated by the secretary, and no shares may be represented or voted under a
proxy that has been found to be invalid or irregular. Except as otherwise
limited therein or as otherwise provided by law, proxies authorizing a person to
vote at a specific meeting shall entitle the persons authorized thereby to vote
at any adjournment of such meeting, but they shall not be valid after final
adjournment of such meeting. A proxy with respect to stock held in the name of
two or more persons shall be valid if executed by or on behalf of any one of
them unless at or prior to the exercise of the proxy the Corporation receives a
specific written notice to the contrary from any one of them.
SECTION 7. Action at Meeting. When a quorum is present at any meeting of stockholders, any matter before any such meeting (other than an election of a director or directors) shall be decided by a majority of the votes properly cast for and against such matter, except where a larger vote is required by law, by the Certificate or by these Bylaws. Any election of directors by stockholders shall be determined by a plurality of the votes properly cast on the election of directors.
SECTION 8. Stockholder Lists. The Secretary or an Assistant Secretary (or the Corporation's transfer agent or other person authorized by these Bylaws or by law) shall prepare and make, at least 10 days before every Annual Meeting or special meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for a period of at least 10 days prior to the meeting in the manner provided by law. The list shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law.
SECTION 9. Presiding Officer. The Chairman of the Board, if one is elected, or if not elected or in his or her absence, the President shall preside at all Annual Meetings or special meetings of stockholders and shall have the power, among other things, to adjourn such meeting at any time and from time to time, subject to Sections 4 and 5 of this Article I. The order of business and all other matters of procedure at any meeting of the stockholders shall be determined by the presiding officer.
SECTION 10. Inspectors of Elections. The Corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the presiding officer shall appoint one or more inspectors to act at the meeting. Any inspector may, but need not, be an officer, employee or agent of the Corporation. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall determine the number of shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, and the validity and effect of proxies, and shall receive votes or ballots, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes or ballots, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting, the inspector or inspectors, if any, shall make a report in writing if any challenge, question or matter determined by such inspector or inspectors and execute a certificate of any fact found by such inspector or inspectors. The presiding officer may review all determinations made by the inspectors, and in so doing the presiding officer shall be entitled to exercise his or her sole judgment and discretion and he or she shall not be bound by any determinations made by the inspectors. All determinations by the inspectors and, if applicable, the presiding officer, shall be subject to further review by any court of competent jurisdiction. No candidate who is a candidate for an office in an election may serve as an inspector at such election The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors.
SECTION 11. Conduct of Meetings. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules or regulations as may be adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (a) establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and safety of those present, (c) limitation on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the presiding
person at the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for commencement thereof; and (e) limitations on the time allotted to questions or comments by participants.
ARTICLE II
Directors
SECTION 1. Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors except as otherwise provided by the Certificate or required by law.
SECTION 2. Number and Terms. The number of directors of the Corporation shall be fixed solely and exclusively by resolution duly adopted from time to time by the Board of Directors. The directors shall hold office in the manner provided in the Certificate.
SECTION 3. Qualification. Each director shall be at least 18 years old. A director need not be a stockholder of the Corporation, a citizen of the United States or a resident of the State of Delaware.
SECTION 4. Vacancies. Vacancies in the Board of Directors shall be filled in the manner provided in the Certificate.
SECTION 5. Removal. Directors may be removed from office only in the manner provided in the Certificate.
SECTION 6. Resignation. A director may resign at any time by giving written notice to the Chairman of the Board, if one is elected, the Chief Executive Officer, the President or the Secretary. A resignation shall be effective upon receipt, unless the resignation otherwise provides.
SECTION 7. Regular Meetings. The regular annual meeting of the Board of Directors shall be held, without notice other than this Section 7, on the same date and at the same place as the Annual Meeting following the close of such meeting of stockholders. Other regular meetings of the Board of Directors may be held at such hour, date and place as the Board of Directors may by resolution from time to time determine and publicize by means of reasonable notice given to any director who is not present at the meeting at which such resolution is adopted.
SECTION 8. Special Meetings. Special meetings of the Board of Directors may be called, orally or in writing, by or at the request of a majority of the directors, the Chairman of the Board, if one is elected, the Chief Executive Officer or the President. The person calling any such special meeting of the Board of Directors may fix the hour, date and place thereof.
SECTION 9. Notice of Meetings. Notice of the hour, date and place of all special meetings of the Board of Directors shall be given to each director by the Secretary or an Assistant Secretary, or in case of the death, absence, incapacity or refusal of such persons, by the Chairman of the Board, if one is elected, the Chief Executive Officer or the President or such other officer designated by the Chairman of the Board, if one is elected, or the President. Notice of any special meeting of the Board of Directors shall be given to each director in person, by telephone, or by facsimile, electronic mail or other form of electronic communication, sent to his or her business or home address, at least 24 hours in advance of the meeting, or by written notice mailed to his or her business or home address, at least 48 hours in advance of the meeting. Such notice shall be deemed to be delivered when hand delivered to such address, read to such director by telephone, deposited in the mail so addressed, with postage thereon prepaid if mailed, dispatched or transmitted if faxed, telexed or telecopied, or sent by electronic mail or other form of electronic communication, or when delivered to the telegraph company if sent by telegram.
A written waiver of notice signed before or after a meeting by a director and filed with the records of the meeting shall be deemed to be equivalent to notice of the meeting. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because such meeting is not lawfully called or convened. Except as otherwise required by law, by the Certificate or by these Bylaws, neither the business to be transacted at, nor the purpose of, any meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.
SECTION 10. Quorum. At any meeting of the Board of Directors, a majority of the total number of directors shall constitute a quorum for the transaction of business, but if less than a quorum is present at a meeting, a majority of the directors present may adjourn the meeting from time to time, and the meeting may be held as adjourned without further notice, except as provided in Section 9 of this Article II. Any business which might have been transacted at the meeting as originally noticed may be transacted at such adjourned meeting at which a quorum is present. For purposes of this Section 10, the total number of directors includes any unfilled vacancies on the Board of Directors.
SECTION 11. Action at Meeting. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of the directors present shall constitute action by the Board of Directors, unless otherwise required by law, by the Certificate or by these Bylaws.
SECTION 12. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all members of the Board of Directors consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the records of the meetings of the Board of Directors. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Such consent shall be treated as a resolution of the Board of Directors for all purposes.
SECTION 13. Manner of Participation. Directors may participate in meetings of the Board of Directors by means of conference telephone or other communications equipment by means of which all directors participating in the meeting can hear each other, and participation in a meeting in accordance herewith shall constitute presence in person at such meeting for purposes of these Bylaws.
SECTION 14. Committees. The Board of Directors, by vote of a majority of the directors then in office, may elect one or more committees, including, without limitation, a Compensation Committee, a Nominating and Corporate Governance Committee and an Audit Committee, and may delegate thereto some or all of its powers except those which by law, by the Certificate or by these Bylaws may not be delegated. Except as the Board of Directors may otherwise determine, any such committee may make rules for the conduct of its business, but unless otherwise provided by the Board of Directors or in such rules, its business shall be conducted so far as possible in the same manner as is provided by these Bylaws for the Board of Directors. All members of such committees shall hold such offices at the pleasure of the Board of Directors. The Board of Directors may abolish any such committee at any time. Any committee to which the Board of Directors delegates any of its powers or duties shall keep records of its meetings and shall report its action to the Board of Directors.
SECTION 15. Compensation of Directors. Directors shall receive such compensation for their services as shall be determined by a majority of the Board of Directors, or a designated committee thereof, provided that directors who are serving the Corporation as employees and who receive compensation for their services as such, shall not receive any salary or other compensation for their services as directors of the Corporation.
SECTION 16. Chairman of the Board. The Board of Directors shall elect, by the affirmative vote of a majority of the total number of Directors then in office, a chairman of the board, who shall preside at all meetings of the stockholders and Board of Directors at which he or she is present and shall have such powers and perform such duties as the Board of Directors may from time to time prescribe. If the chairman of the board is not present at a meeting of the stockholders or the Board of Directors, the Chief Executive Officer (if the Chief Executive Officer is a Director and is not also the chairman of the board) shall preside at such meeting, and, if the chief executive officer is not present at such meeting, a majority of the Directors present at such meeting shall elect one of their members to so preside.
ARTICLE III
Officers
SECTION 1. Enumeration. The officers of the Corporation shall consist of a President, a Treasurer, a Secretary and such other officers, including, without limitation, a Chairman of the Board of Directors, a Chief Executive Officer and one or more Vice Presidents (including Executive Vice Presidents or Senior Vice Presidents), Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries, as the Board of Directors may determine.
SECTION 2. Election. At the regular annual meeting of the Board of Directors following the Annual Meeting, the Board of Directors shall elect the Chief Executive Officer, the President, the Treasurer and the Secretary. Other officers may be elected by the Board of Directors at such regular annual meeting of the Board of Directors or at any other regular or special meeting.
SECTION 3. Qualification. No officer need be a stockholder or a director. Any person may occupy more than one office of the Corporation at any time.
SECTION 4. Tenure. Except as otherwise provided by the Certificate or by these Bylaws, each of the officers of the Corporation shall hold office until the regular annual meeting of the Board of Directors following the next Annual Meeting and until his or her successor is elected and qualified or until his or her earlier death, resignation or removal.
SECTION 5. Resignation. Any officer may resign by delivering his or her written resignation to the Corporation addressed to the Chief Executive Officer, the President or the Secretary, and such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
SECTION 6. Removal. Except as otherwise provided by law, the Board of Directors may remove any officer with or without cause by the affirmative vote of a majority of the directors then in office.
SECTION 7. Absence or Disability. In the event of the absence or disability of any officer, the Board of Directors may designate another officer to act temporarily in place of such absent or disabled officer.
SECTION 8. Vacancies. Any vacancy in any office may be filled for the unexpired portion of the term by the Board of Directors.
SECTION 9. Chairman of the Board. The Chairman of the Board, if one is elected, shall preside, when present, at all meetings of the stockholders and of the Board of Directors. The Chairman of the Board shall have such other powers and shall perform such other duties as the Board of Directors may from time to time designate.
SECTION 10. Chief Executive Officer. The Chief Executive Officer shall have the powers and perform the duties incident to that position. Subject to the powers of the Board of Directors and the Chairman of the Board, the Chief Executive Officer shall be in the general and active charge of the entire business and affairs of the Corporation, and shall be its chief policy making officer. The Chief Executive Officer shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or provided in these Bylaws. The Chief Executive Officer is authorized to execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, if any, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of the Corporation. If there is no Chairman of the Board or if he or she is absent, the Chief Executive Officer shall preside, when present, at all meetings of stockholders and of the Board of Directors.
SECTION 11. President. The President of the Corporation shall, subject to the powers of the Board of Directors, the Chairman of the Board and the Chief Executive Officer, have general charge of the business, affairs and property of the Corporation, and control over its officers, agents and employees. The President shall see that all orders and resolutions of the Board of Directors are carried into effect. The President is authorized to execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, if any, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation. The president shall have such other powers and perform such other duties as may be prescribed by the Chairman of the Board, the Chief Executive Officer, the Board of Directors or as may be provided in these Bylaws.
SECTION 12. Chief Financial Officer. The Chief Financial Officer shall have the custody of the corporate funds and securities; shall keep full and accurate all books and accounts of the Corporation as shall be necessary or desirable in accordance with applicable law or generally accepted accounting principles; shall deposit all monies and other valuable effects in the name and to the credit of the Corporation as may be ordered by the Chairman of the Board or the Board of Directors; shall cause the funds of the Corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall render to the Board of Directors, at its regular meeting or when the Board of Directors so requires, an account of the Corporation; shall have such powers and perform such duties as the Board of Directors, the Chairman of the Board, the Chief Executive Officer or these Bylaws may, from time to time, prescribe.
SECTION 13. Chief Operating Officer. The Chief Operating Officer, if one is elected, shall have such powers and shall perform such duties as the Board of Directors may from time to time designate.
SECTION 14. Vice Presidents and Assistant Vice Presidents. Any Vice President (including any Executive Vice President or Senior Vice President) and any Assistant Vice President shall have such powers and shall perform such duties as the Board of Directors or the Chief Executive Officer may from time to time designate.
SECTION 15. Treasurer and Assistant Treasurers. The Treasurer shall, subject to the direction of the Board of Directors and except as the Board of Directors, the Chief Executive Officer or the Chief Financial Officer may otherwise provide, have general charge of the financial affairs of the Corporation and shall cause to be kept accurate books of account. He or she shall have such other duties and powers as may be designated from time to time by the Board of Directors, the Chief Executive Officer or the Chief Financial Officer. Any Assistant Treasurer shall have such powers and perform such duties as the Board of Directors or the Chief Executive Officer may from time to time designate.
SECTION 16. Secretary and Assistant Secretaries. The Secretary shall record all the proceedings of the meetings of the stockholders and the Board of Directors (including committees of the Board) in books kept for that purpose. In his or her absence from any such meeting, a temporary secretary chosen at the meeting shall record the proceedings thereof. The Secretary shall have charge of the stock ledger (which may, however, be kept by any transfer or other agent of the Corporation). The Secretary shall have custody of the seal of the Corporation, if any, and the Secretary, or an Assistant Secretary, shall have authority to affix it to any instrument requiring it, and, when so affixed, the seal may be attested by his or her signature or that of an Assistant Secretary. The Secretary shall have such other duties and powers as may be designated from time to time by the Board of Directors or the Chief Executive Officer. In the absence of the Secretary, any Assistant Secretary may perform his or her duties and responsibilities. Any Assistant Secretary shall have such powers and perform such duties as the Board of Directors or the Chief Executive Officer may from time to time designate.
SECTION 17. Other Powers and Duties. Subject to these Bylaws and to such limitations as the Board of Directors may from time to time prescribe, the officers of the Corporation shall each have such powers and duties as generally pertain to their respective offices, as well as such powers and duties as from time to time may be conferred by the Board of Directors or the Chief Executive Officer.
SECTION 18. Compensation. Compensation of all executive officers shall be approved by the Board of Directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a Director of the Corporation; provided however, that compensation of all executive officers may be determined by a committee established for that purpose if so authorized by the Board of Directors.
ARTICLE IV
Capital Stock
SECTION 1. Certificates of Stock. Each stockholder shall be entitled to a certificate of the capital stock of the Corporation in such form as may from time to time be prescribed by the Board of Directors. Such certificate shall be signed by the Chairman of the Board of Directors, the Chief Executive Officer, the President or a Vice President and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary. The Corporation seal, if any, and the signatures by the Corporation's officers, the transfer agent or the registrar may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed on such certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the time of its issue. Every certificate for shares of stock which are subject to any restriction on transfer and every certificate issued when the Corporation is authorized to issue more than one class or series of stock shall contain such legend with respect thereto as is required by law. The Board of Directors may provide by resolution that some or all of any or all classes or series of its stock shall be uncertificated shares.
SECTION 2. Transfers. Subject to any restrictions on transfer and unless otherwise provided by the Board of Directors, shares of stock may be transferred only on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate theretofore properly endorsed or accompanied by a written assignment or power of attorney properly executed, with transfer stamps (if necessary) affixed, and with such proof of the authenticity of signature as the Corporation or its transfer agent may reasonably require.
SECTION 3. Record Holders. Except as may otherwise be required by law, by the Certificate or by these Bylaws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other disposition of such stock, until the shares have been transferred on the books of the Corporation in accordance with the requirements of these Bylaws.
SECTION 4. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (a) in the case of determination of stockholders entitled to vote at any meeting of stockholders, shall, unless otherwise required by law, not be more than 60 nor less than 10 days before the date of such meeting; and (b) in the case of any other action, shall not be more than 60 days prior to such other action. If no record date is fixed: (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; and (ii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
SECTION 5. Replacement of Certificates. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously issued by the Corporation alleged to have been lost, stolen, mutilated or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Corporation may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, mutilated or destroyed certificate or certificates, or his or her legal representative, to give the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate.
ARTICLE V
Indemnification
SECTION 1. Definitions. For purposes of this Article V, the following terms shall have the respective meanings set forth below:
(a) "Corporate Status" describes the status of a person who is serving or has served (i) as a Director of the Corporation, (ii) as an Officer of the Corporation, or (iii) as a director, partner, trustee, officer, employee or agent of any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, foundation, association, organization or other legal entity which such person is or was serving at the request of the Corporation. For purposes of this Section 1(a), an Officer or Director of the Corporation who is serving or has served as a director, partner, trustee, officer, employee or agent of a Subsidiary shall be deemed to be serving at the request of the Corporation. Notwithstanding the foregoing, "Corporate Status" shall not include the status of a person who is serving or has served as a director, officer, employee or agent of a constituent corporation absorbed in a merger or consolidation transaction with the Corporation with respect to such person's activities prior to said transaction, unless specifically authorized by the Board of Directors or the stockholders of the Corporation.
(b) "Director" means any person who serves or has served the Corporation as a director on the Board of Directors of the Corporation.
(c) "Disinterested Director" means, with respect to each Proceeding in respect of which indemnification is sought hereunder, a Director of the Corporation who is not and was not a party to such Proceeding.
(d) "Expenses" means all attorneys' fees, retainers, court costs, transcript costs, fees of expert witnesses, private investigators and professional advisors (including, without limitation, accountants and investment bankers), travel expenses, duplicating costs, printing and binding costs, costs of preparation of demonstrative evidence and other courtroom presentation aids and devices, costs incurred in connection with document review, organization, imaging and computerization, telephone charges, postage, delivery service fees, and all other disbursements, costs or expenses of the type customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settling or otherwise participating in, a Proceeding.
(e) "Liabilities" means judgments, damages, liabilities, losses, penalties, excise taxes, fines and amounts paid in settlement.
(f) "Non-Officer Employee" means any person who serves or has served as an employee or agent of the Corporation, but who is not or was not a Director or Officer.
(g) "Officer" means any person who serves or has served the Corporation as an officer of the Corporation appointed by the Board of Directors of the Corporation.
(h) "Proceeding" means any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, inquiry, investigation, administrative hearing or other proceeding, whether civil, criminal, administrative, arbitrative or investigative.
(i) "Subsidiary" shall mean any corporation, partnership, limited liability company, joint venture, trust or other entity of which the Corporation owns (either directly or through or together with another Subsidiary of the Corporation) either (i) a general partner, managing member or other similar interest or (ii) (a) 50% or more of the voting power of the voting capital equity interests of such corporation, partnership, limited liability company, joint venture or other entity, or (b) 50% or more of the outstanding voting capital stock or other voting equity interests of such corporation, partnership, limited liability company, joint venture or other entity.
SECTION 2. Indemnification of Directors and Officers. Subject to the operation of Section 4 of this Article V of these Bylaws, each Director and Officer shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment) and to the extent authorized in this Section 2.
(a) Actions, Suits and Proceedings Other than By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses and Liabilities that are incurred or paid by such Director or Officer or on such Director's or Officer's behalf in connection with any Proceeding or any claim, issue or matter therein (other than an action by or in the right of the Corporation), which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director's or Officer's Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.
(b) Actions, Suits and Proceedings By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses that are incurred by such Director or Officer or on such Director's or Officer's behalf in connection with any Proceeding or any claim, issue or matter therein by or in the right of the Company, which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director's or Officer's Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful; provided, however, that no indemnification shall be made under Section 2(a) in respect of any claim, issue or matter as to which such Director or Officer shall have been finally adjudged by a court of competent jurisdiction to be liable to the Company, unless, and only to the extent that, the Court of Chancery or another court in which such Proceeding was brought shall determine upon application that, despite adjudication of liability, but in view of all the circumstances of the case, such Director or Officer is fairly and reasonably entitled to indemnification for such Expenses that such court deems proper.
(c) Rights of Indemnification. The rights of indemnification provided by this Section 2 shall continue as to a Director or Officer after he or she has ceased to be a Director or Officer and shall inure to the benefit of his or her heirs, executors, administrators and personal representatives. Notwithstanding the foregoing, the Corporation shall indemnify any Director or Officer seeking indemnification in connection with a Proceeding initiated by such Director or Officer only if such Proceeding was authorized in advance by the Board of Directors of the Corporation, unless such Proceeding was brought to enforce an Officer or Director's rights to indemnification or, in the case of Directors, advancement of Expenses under these Bylaws in accordance with the provisions set forth herein.
SECTION 3. Indemnification of Non-Officer Employees. Subject to the operation of Section 4 of this Article V of these Bylaws, each Non-Officer Employee may, in the discretion of the Board of Directors of the Corporation, be indemnified by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against any or all Expenses and Liabilities that are incurred by such Non-Officer Employee or on such Non-Officer Employee's behalf in connection with any threatened, pending or completed Proceeding, or any claim, issue or matter therein, which such Non-Officer Employee is, or is threatened to be made, a party to or participant in by reason of such Non-Officer Employee's Corporate Status, if such Non-Officer Employee acted in good faith and in a manner such Non-Officer Employee reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The rights of indemnification provided by this Section 3 shall exist as to a Non-Officer Employee after he or she has ceased to be a Non-Officer Employee and shall inure to the benefit of his or her heirs, personal representatives, executors and administrators. Notwithstanding the foregoing, the Corporation may indemnify any Non-Officer Employee seeking indemnification in connection with a Proceeding initiated by such Non-Officer Employee only if such Proceeding was authorized in advance by the Board of Directors of the Corporation.
SECTION 4. Good Faith. Unless ordered by a court, no indemnification shall be provided pursuant to this Article V to a Director, to an Officer or to a Non-Officer Employee unless a determination shall have been made that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal Proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. Such determination shall be made by (a) a majority vote of the Disinterested Directors, even though less than a quorum of the Board of Directors, (b) a committee comprised of Disinterested Directors, such committee having been designated by a majority vote of the Disinterested Directors (even though less than a quorum), (c) if there are no such Disinterested Directors, or if a majority of Disinterested Directors so directs, by independent legal counsel in a written opinion, or (d) by the stockholders of the Corporation.
SECTION 5. Advancement of Expenses to Directors Prior to Final Disposition. The Corporation shall advance all Expenses incurred by or on behalf of any Director in connection with any Proceeding in which such Director is involved by reason of such Director's Corporate Status within 30 days after the receipt by the Corporation of a written statement from such Director requesting such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Director and shall be preceded or accompanied by an undertaking by or on behalf of such Director to repay any Expenses so advanced if it shall ultimately be determined that such Director is not entitled to be indemnified against such Expenses. Notwithstanding the foregoing, the Corporation shall advance all Expenses incurred by or on behalf of any Director seeking advancement of expenses hereunder in connection with a Proceeding initiated by such Director only if such Proceeding was (i) authorized by the Board of Directors of the Corporation, or (ii) brought to enforce such Director's rights to indemnification or advancement of Expenses under these Bylaws.
(a) If a claim for advancement of Expenses hereunder by a Director is not paid in full by the Corporation within 30 days after receipt by the Corporation of documentation of Expenses and the required undertaking, such Director may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and if successful in whole or in part, such Director shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such advancement of Expenses under this Article V shall not be a defense to the action and shall not create a presumption that such advancement is not permissible. The burden of proving that a Director is not entitled to an advancement of expenses shall be on the Corporation.
(b) In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the Director has not met any applicable standard for indemnification set forth in the DGCL.
SECTION 6. Advancement of Expenses to Officers and Non-Officer Employees Prior to Final Disposition. The Corporation may, at the discretion of the Board of Directors of the Corporation, advance any or all Expenses incurred by or on behalf of any Officer or any Non-Officer Employee in connection with any Proceeding in which such is involved by reason of the Corporate Status of such Officer or Non-Officer Employee upon the receipt by the Corporation of a statement or statements from such Officer or Non-Officer Employee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Officer or Non-Officer Employee and shall be preceded or accompanied by an undertaking by or on behalf of such to repay any Expenses so advanced if it shall ultimately be determined that such Officer or Non-Officer Employee is not entitled to be indemnified against such Expenses.
In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the Officer or Non-Officer Employee has not met any applicable standard for indemnification set forth in the DGCL.
SECTION 7. Contractual Nature of Rights. The foregoing provisions of this Article V shall be deemed to be a contract between the Corporation and each Director and Officer entitled
to the benefits hereof at any time while this Article V is in effect, and any repeal or modification thereof shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any Proceeding theretofore or thereafter brought based in whole or in part upon any such state of facts.
(a) If a claim for indemnification hereunder by a Director or Officer is not paid in full by the Corporation within 60 days after receipt by the Corporation of a written claim for indemnification, such Director or Officer may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, such Director or Officer shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such indemnification under this Article V shall not be a defense to the action and shall not create a presumption that such indemnification is not permissible. The burden of proving that a Director or Officer is not entitled to indemnification shall be on the Corporation.
(b) In any suit brought by a Director or Officer to enforce a right to indemnification hereunder, it shall be a defense that such Director or Officer has not met any applicable standard for indemnification set forth in the DGCL.
SECTION 8. Non-Exclusivity of Rights. The rights to indemnification and to advancement of Expenses set forth in this Article V shall not be exclusive of any other right which any Director, Officer, or Non-Officer Employee may have or hereafter acquire under any statute, provision of the Certificate or these Bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise.
SECTION 9. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any Director, Officer or Non-Officer Employee against any liability of any character asserted against or incurred by the Corporation or any such Director, Officer or Non-Officer Employee, or arising out of any such person's Corporate Status, whether or not the Corporation would have the power to indemnify such person against such liability under the DGCL or the provisions of this Article V.
SECTION 10. Other Indemnification. The Corporation's obligation, if any, to indemnify any person under this Article V as a result of such person serving, at the request of the Corporation, as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, joint venture, trust, employee benefit plan or enterprise.
ARTICLE VI
Miscellaneous Provisions
SECTION 1. Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors and may be amended by the Board of Directors.
SECTION 2. Seal. The Board of Directors shall have power to adopt and alter the seal of the Corporation.
SECTION 3. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, in accordance with applicable law. Dividends may be paid in cash, in property or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or any other purpose and the Directors may modify or abolish any such reserve in the manner in which it was created.
SECTION 4. Execution of Instruments. All deeds, leases, transfers, contracts, bonds, notes and other obligations to be entered into by the Corporation in the ordinary course of its business without director action may be executed on behalf of the Corporation by the Chief Executive Officer, Chairman of the Board, the President, the Chief Operating Officer, or the Chief Financial Officer, or the Treasurer or any other officer, employee or agent of the Corporation as the Board of Directors may authorize.
SECTION 5. Checks, Drafts or Orders. All checks, drafts or other orders for the payment of money by or to the Corporation and all notes and other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents of the Corporation, and in such manner, as shall be determined by resolution of the Board of Directors or a duly authorized committee thereof.
SECTION 6. Voting of Securities. Unless the Board of Directors otherwise provides, the Chairman of the Board, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer, the President or the Treasurer may waive notice of and act on behalf of this Corporation, or appoint another person or persons to act as proxy or attorney in fact for this Corporation with or without discretionary power and/or power of substitution, at any meeting of stockholders of any other corporation or organization, any of whose securities are held by this Corporation.
SECTION 7. Resident Agent. The Board of Directors may appoint a resident agent upon whom legal process may be served in any action or proceeding against the Corporation.
SECTION 8. Corporate Records. The original or attested copies of the Certificate, Bylaws and records of all meetings of the incorporators, stockholders and the Board of Directors and the stock transfer books, which shall contain the names of all stockholders, their record
addresses and the amount of stock held by each, may be kept outside the State of Delaware and shall be kept at the principal office of the Corporation, at the office of its counsel or at an office of its transfer agent or at such other place or places as may be designated from time to time by the Board of Directors.
SECTION 9. Certificate. All references in these Bylaws to the Certificate shall be deemed to refer to the Certificate of Incorporation of the Corporation, as amended and in effect from time to time.
SECTION 10. Amendment of Bylaws.
(a) Amendment by Directors. Except as provided otherwise by law, these Bylaws may be amended or repealed by the Board of Directors by the affirmative vote of a majority of the directors then in office.
(b) Amendment by Stockholders. These Bylaws may be amended or repealed at any Annual Meeting, or special meeting of stockholders called for such purpose, by the affirmative vote of a majority of the outstanding shares entitled to vote on such amendment or repeal, voting together as a single class. Notwithstanding the foregoing, stockholder approval shall not be required unless mandated by the Certificate, these Bylaws, or other applicable law.
SECTION 11. Notices. If mailed, notice to stockholders shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at such stockholder's address as it appears on the records of the Corporation. Without limiting the manner by which notice otherwise may be given to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided in Section 232 of the DGCL.
SECTION 12. Waivers. A written waiver of any notice, signed by a stockholder or director, or waiver by electronic transmission by such person, whether given before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such person. Neither the business nor the purpose of any meeting need be specified in such a waiver.
SECTION 13. Inconsistent Provisions. In the event that any provision of these Bylaws is or becomes inconsistent with any provision of the Certificate, the DGCL or any other applicable law, the provision of these Bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.
[End of Text]
EXHIBIT 4.16
ALTRA HOLDINGS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
NUMBER SHARES AH COMMON STOCK SEE REVERSE FOR CERTAIN DEFINITIONS THIS CERTIFIES THAT CUSIP 02208R 10 6 |
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK $.001 PAR VALUE OF
ALTRA HOLDINGS, INC., transferable on the books of the corporation by such owner in person or by attorney upon surrender of this certificate duly endorsed or assigned. This certificate and the shares represented hereby are subject to the laws of the State of Delaware and the Certificate of Incorporation and By-Laws of the corporation, as now in effect or hereinafter amended. This certificate is not valid until countersigned and registered by the Transfer Agent and Registrar.
Dated: /s/ David Wall /s/ Carl R. Christenson (SEAL) |
TREASURER PRESIDENT
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
(NEW YORK, NY)
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
THE CORPORATION IS AUTHORIZED TO ISSUE MULTIPLE CLASSES AND SERIES OF STOCK. THE FULL TEXT OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS, OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS, ALL VESTING POWERS, QUALIFICATIONS AND SPECIAL AND RELATIVE RIGHTS OF THE SHARES OF EACH SUCH CLASS, AS SET FORTH IN THE CERTIFICATE OF INCORPORATION, WILL BE FURNISHED TO THE HOLDER HEREOF WITHOUT CHARGE, UPON WRITTEN REQUEST TO THE CORPORATION.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT-__________Custodian_________
TEN ENT - as tenants by the (Cust) (Minor) entireties JT TEN - as joint tenants with under Uniform Gifts to Minors right of survivorship and not as tenants Act________________________ in common (State) |
Additional abbreviations may also be used though not in the above list.
For value received,________hereby sells, assigns and transfers unto
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the Certificate, in every particular, without alteration or enlargement, or any change whatever.
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
__________________________________________________________________________Shares
of the common stock represented by the within Certificate, and do hereby irrevocably constitute and appoint______________________________________________
Dated,___________
Signature(s) Guaranteed
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
EXHIBIT 4.17
SECOND AMENDMENT
TO THE
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Second Amendment to the Amended and Restated Stockholders Agreement (this "Amendment"), dated as of , 2006, is entered into by and among Altra Holdings, Inc., a Delaware corporation (the "Company"), and each of the parties named on Schedule A hereto (each a "Stockholder" and collectively, the "Stockholders") in order to amend and modify that certain Amended and Restated Stockholders Agreement, dated as of January 6, 2005 (the "Agreement"), as amended by the First Amendment to the Amended and Restated Stockholders Agreement, dated May 1, 2005. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.
RECITALS:
WHEREAS, the Company and the Stockholders desire to amend the Agreement; and
WHEREAS, Section 15(e) of the Agreement provides that the Agreement may be amended by the written consent of the Company and Stockholders owning a majority of the Company's Securities, subject to certain exceptions.
NOW, THEREFORE, the parties to this Amendment, intending to be legally bound hereby, agree as follows:
Section 1. Certain Definitions. Section 1(q) of the Agreement shall be deleted in its entirety and replaced with the following:
"(q) QUALIFIED PUBLIC OFFERING" means any underwritten initial Public Offering."
Section 2. Covenants. Section 7(e) of the Agreement shall be deleted in its entirety and replaced with the following:
"(e) Termination. The covenants and agreement set forth in Section 7(a)
shall survive for a period of five (5) years after the date hereof. As to each
Management Stockholder, the covenants and agreement set forth in Section 7(b)
shall survive for a period of one year and one day after such Management
Stockholder ceases to be an employee of the Company, and the covenants and
agreements set forth in Section 7(c) shall survive for a period of two (2) years
plus one day after such Management Stockholder ceases to be an employee of the
Company. The covenants and agreement set forth in Section 7(d) (i) shall
terminate and be of no further force or effect immediately upon consummation of
Altra's or the Company's initial Public Offering, and (ii) (other than Section
7(d)(iii)) shall not be in effect during such time as Altra or the Company is
filing such
information pursuant to the periodic reporting requirements of Sections 12(g) or 15(d) of the Exchange Act."
Section 3. Effectiveness. This Amendment shall become effective as of the date first above written. Except as otherwise provided in this Amendment, all terms and conditions of the Agreement shall remain in full force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
ALTRA HOLDINGS, INC.
By: ______________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
GENSTAR CAPITAL PARTNERS III, L.P.
By: Genstar Capital III, L.P.
Its: General Partner
By: Genstar III GP LLC
Its: General Partner
By: _________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
STARGEN III, L.P.
By: Genstar Capital III, L.P.
Its: General Partner
By: Genstar III GP LLC
Its: General Partner
By: _________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
FRANK BAUCHIERO MKC WORLDWIDE
By: ______________________________
Name:
Title:
Address:
SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
SCHEDULE A
LIST OF STOCKHOLDERS
Genstar Capital Partners III, L.P.
Stargen III, L.P.
Caisse de depot et placement du Quebec
Michael L. Hurt
William J. Duff
Thomas F. Tatarczuch
Donald S. Wierbinski
Craig Schuele
Gerald Ferris
Edward L. Novotny
Mark Stuebe
Timothy McGowan
Larry McPherson
Lee Hess
Thomas Hunt
Frank Bauchiero MKC Worldwide
Frank E. Bauchiero
Carl R. Christenson
Virginia Christenson
David Wall
David Zietlow
David Ebling
EXHIBIT 4.18
FIRST AMENDMENT
TO THE
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This First Amendment to the Amended and Restated Registration Rights Agreement (this "Amendment"), dated as of , 2006, is entered into by and among Altra Holdings, Inc., a Delaware corporation (the "Company"), and each of the parties named on Schedule A hereto (each a "Holder" and collectively, the "Holders") in order to amend and modify that certain Amended and Restated Registration Rights Agreement, dated as of January 6, 2005 (the "Agreement"). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.
RECITALS:
WHEREAS, the Company and the Holders desire to amend the Agreement; and
WHEREAS, Section 10(b) of the Agreement provides that the Agreement may be amended by the written consent of the Company and Holders owning at least 66-2/3% of the Company's Registrable Securities, subject to certain exceptions.
NOW, THEREFORE, the parties to this Amendment, intending to be legally bound hereby, agree as follows:
Section 1. Definitions. The definition of "Qualified Public Offering" in
Section 1 of the Agreement shall be deleted in its entirety and replaced with
the following:
""QUALIFIED PUBLIC OFFERING" means any underwritten initial Public Offering."
Section 2. Effectiveness. This Amendment shall become effective as of the date first above written. Except as otherwise provided in this Amendment, all terms and conditions of the Agreement shall remain in full force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
ALTRA HOLDINGS, INC.
Title:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
GENSTAR CAPITAL PARTNERS III, L.P.
By: Genstar Capital III, L.P.
Its: General Partner
By: Genstar III GP LLC
Its: General Partner
Title:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
STARGEN III, L.P.
By: Genstar Capital III, L.P.
Its: General Partner
By: Genstar III GP LLC
Its: General Partner
Title:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
Title:
Title:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties as of the date first set forth above.
FRANK BAUCHIERO MKC WORLDWIDE
Title:
Address:
SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SCHEDULE A
LIST OF STOCKHOLDERS
Genstar Capital Partners III, L.P.
Stargen III, L.P.
Caisse de depot et placement du Quebec
Michael L. Hurt
William J. Duff
Thomas F. Tatarczuch
Donald S. Wierbinski
Craig Schuele
Gerald Ferris
Edward L. Novotny
Mark Stuebe
Timothy McGowan
Larry McPherson
Lee Hess
Thomas Hunt
Frank Bauchiero MKC Worldwide
Frank E. Bauchiero
Carl R. Christenson
Virginia Christenson
David Wall
David Zietlow
David Ebling
EXHIBIT 10.20
FIRST AMENDMENT
TO THE
ADVISORY SERVICES AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") to that certain Advisory Services Agreement ("Advisory Services Agreement"), dated as of November 30, 2004, among Altra Holdings, Inc. ("Holdings"), Altra Industrial Motion, Inc. ("Altra") and Genstar Capital, L.P. ("Genstar"), is entered into as of November 30, 2006, among Holdings, Altra and Genstar.
RECITALS
WHEREAS, Holdings has announced its intention to conduct an initial public offering of its common stock , par value $0.001 per share (the "Offering");
WHEREAS, pursuant to the Advisory Services Agreement, Genstar has and will provide certain management, business strategy, consulting and financial services to the Company in connection with the Offering (the "Services");
WHEREAS, the parties hereto desire to amend the terms of the Advisory Services Agreement to clarify the fees payable to Genstar for its Services in connection with the Offering;
WHEREAS, following the Offering and the payment of all amounts due to Genstar, the parties hereto desire to terminate the Advisory Services Agreement;
WHEREAS, the parties hereto desire to amend the terms of the Advisory Services Agreement as provided in this Amendment pursuant to Section 10 of the Advisory Services Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties hereby agree as follows:
1. Definitions. Capitalized terms not otherwise defined in this Amendment have the meaning given them in the Advisory Services Agreement.
2. Amendment of the Agreement. Effective upon the date hereof, the Advisory Services Agreement is amended as follows:
2.1. Amendment to Section 2(e) of the Advisory Services Agreement.
Section 2(e) of the Advisory Services Agreement is hereby
amended to insert the following sentence at the end of the
first paragraph of Section 2(e):
"Notwithstanding the foregoing, a Disposition shall not include the initial public offering of Company's common stock pursuant to a registration statement under the Securities Act which has been declared effective by the Securities and
Exchange Commission (other than a registration statement on Form S-4, Form S-8 or any other similar form) (an "INITIAL PUBLIC OFFERING")."
2.2. Amendment to Section 2 of the Advisory Services Agreement.
Section 2 of the Advisory Services Agreement is hereby amended
to insert the following Section 2(f) immediately after Section
2(e):
"(f) In the event an Initial Public Offering is consummated, the Company agrees to pay us an advisory fee of $3,000,000 (the "IPO ADVISORY FEE") for our services in connection with such Initial Public Offering. The IPO Advisory Fee will be fully earned and shall be payable by the Company to us on the date of the effectiveness of the Initial Public Offering ."
2.3. Amendment to Section 3 of the Advisory Services Agreement.
Section 3 of the Advisory Services Agreement is hereby amended
to insert the following sentence at the end of Section 3:
"Notwithstanding the foregoing, this Agreement shall terminate automatically, immediately following the effectiveness of an Initial Public Offering and the payment of all outstanding amounts due to us, including the IPO Advisory Fee."
3. No Other Amendments. Except as modified by Section 2 above, the Advisory Services Agreement shall continue in full force and effect.
4. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law.
* * * * *
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this Amendment to be executed as of the date first written above by their respective officers thereunto duly authorized.
GENSTAR CAPITAL, L.P.
By: Genstar Management LLC
Its: General Partner
By:_________________________________
Name:
Title:
ALTRA HOLDINGS, INC.
By:_________________________________
Name: Michael L. Hurt
Title: Chief Executive Officer
ALTRA INDUSTRIAL MOTION, INC.
By:_________________________________
Name: Michael L. Hurt
Title: Chief Executive Officer
Exhibit 10.21
SECOND AMENDMENT TO THE
ALTRA HOLDINGS, INC.
2004 EQUITY INCENTIVE PLAN
THIS SECOND AMENDMENT (this "Amendment") is entered into effective as of , 2006, to amend that certain 2004 Equity Incentive Plan (the "Plan") of Altra Holdings, Inc., a Delaware Corporation (the "Company").
1. Definitions. Capitalized terms not otherwise defined in this Amendment have the meaning given them in the Plan.
2. Amendment of the Plan. Effective upon the date hereof, the Plan is amended as follows:
2.1. Amendment of Section 2(b). Section 2(b) of the Plan is amended to read in its entirety as follows:
"(b) Authority. The Committee is authorized, subject to the provisions of the Plan, to establish such rules as it deems necessary for the proper administration of the Plan and to make such determinations and interpretations in its sole discretion and to take such action in connection with the Plan and any awards granted hereunder as it deems necessary or advisable, including the right to accelerate the vesting or exerciseability of awards, establish the terms and conditions of awards, cancel awards upon a Change of Control and to correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any option or other benefit granted under the Plan. All determinations and interpretations made by the Committee shall be binding and conclusive on all participants and their legal representatives."
2.2. Amendment of Section 5(a). Section 5(a) of the Plan is amended to read in its entirety as follows:
"(a) Maximum Shares. The aggregate number of shares of common stock of the Company par value $0.001 ("Shares") that may be issued under this Plan shall be Six Million Eight Thousand Five Hundred Twelve (6,008,512) Shares, which may be authorized and unissued or treasury Shares, subject to Section 5(c) hereof and Section 13 hereof ("Maximum Shares"). The maximum number of shares that may be "incentive stock options", within the meaning of Section 422 of the Code, is 3,500,000 shares (the "ISO Maximum"). The maximum number of shares that may be any type of stock option under the plan shall be 4,000,000 shares."
2.3. Amendment of Section 6(b). Section 6(b) of the Plan is amended to read in its entirety as follows:
"(b) Exercise Price. Each stock option granted hereunder shall have a per Share exercise price of not less than the fair market value (as defined in Section 17 of the Plan) of a Share on the date of grant."
2.4. Amendment of Section 7(b). Section 7(b) of the Plan is amended to read in its entirety as follows:
"(b) Grant Price. The grant price per Share referenced in a stock appreciation right shall not be less than the fair market value (as defined in Section 17 of the Plan) of a Share on the date of grant."
2.5. Amendment of Section 13(b). Section 13(b) of the Plan is amended to read in its entirety as follows:
"(b) Modification of Awards. In the event of any change or distribution described in subsection (a) above, in order to prevent dilution or enlargement of participants' rights under the Plan, the Committee shall have authority to adjust, in an equitable manner, the number and kind of shares that may be issued under the Plan, the number and kind of shares subject to outstanding awards, the exercise price applicable to outstanding awards, and the fair market value of the common stock and other value determinations applicable to outstanding awards; provided, however, that any such arithmetic adjustment to a performance-based award shall not cause the amount of compensation payable thereunder to be increased from what otherwise would have been due upon attainment of the unadjusted award. Appropriate adjustments may also be made by the Committee in the terms of any awards under the Plan to reflect such changes or distributions and to modify any other terms of outstanding awards on an equitable basis, including modifications of performance targets and changes in the length of performance periods; provided, however, that any such arithmetic adjustment to a performance-based award shall not cause the amount of compensation payable thereunder to be increased from what otherwise would have been due upon attainment of the unadjusted award. In addition, other than with respect to stock options, stock appreciation rights, and other awards intended to constitute performance-based awards, the Committee is authorized to make adjustments to the terms and conditions of, and the criteria included in, awards in recognition of unusual or nonrecurring events affecting the Company or the financial statements of the Company, or in response to changes in applicable laws, regulations, or accounting principles."
2.6. Amendment of Section 13(c). Section 13(c) of the Plan is amended by the addition of the following sentence to the end of the section:
"In the event that a payment or delivery of an award following a Change of Control would not be a permissible distribution event, as defined in Section 409A(a)(2) of the Code or any regulations or other guidance issued thereunder, then the payment or delivery shall be made on the earlier of (i) the date of payment or delivery originally provided for such benefit, or (ii) the date of termination of the participant's employment or service with the Company or six months after such termination in the case of a "specified employee" as defined in Section 409A(a)(2)(B)(i) of the Code."
2.7. Amendment of Section 17. Section 17 of the Plan is amended to read in its entirety as follows:
"FAIR MARKET VALUE. For purposes of this Plan and any awards awarded hereunder, fair market value per Share as of a particular date shall mean (i) if shares are then listed on a national stock exchange, the closing price per Share on the date the option is granted, as determined by the Committee, (ii) if shares are not then listed on a national stock exchange but are then traded on an over-the-counter market, the average of the closing bid and asked prices for such shares in such over-the-counter market for the last preceding date on which there was a sale of such shares in such market, as determined by the Committee, or (iii) if shares are not then listed on a national exchange or traded on an over-the-counter market, such value as the Committee in its discretion may in good faith determine; provided that, where such shares are so listed or traded, the Committee may make discretionary determinations where the shares have not been traded for 10 trading days."
3. No Other Amendments. Except as modified by Section 2 above, the Plan shall continue in full force and effect.
4. Governing Law. This Amendment and any claims related to the subject matter hereof shall be governed by and construed in accordance with the laws of the State of Delaware (regardless of the law that might otherwise govern under applicable Delaware principles of conflict of laws).
EXHIBIT 10.22
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT (this "AMENDMENT"), dated as of , to that certain Employment Agreement, dated as of January 6, 2005 (the "EMPLOYMENT AGREEMENT"), by and among Altra Holdings, Inc., a Delaware Corporation ("HOLDINGS"), Altra - Industrial Motion, Inc., a Delaware corporation and wholly-owned subsidiary of Holdings (the "COMPANY"), and Michael L. Hurt ("EXECUTIVE").
WITNESSETH:
WHEREAS, Holdings, the Company and Executive desire to amend the terms of the Employment Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:
1. Amendment to Section 3. Section 3 of the Employment Agreement is hereby amended and restated as follows:
3. Term; Termination. The Employment Period shall terminate on the third
anniversary of the Effective Date ("INITIAL TERM") and shall automatically renew
for periods of one (1) year unless one party gives written notice to the other
at least six (6) months prior to the end of the Initial Term, or at least six
(6) months prior to the end of any one (1) year renewal period that the
Agreement shall not be further extended. The date on which the Employment Period
terminates after any notice of non-renewal is referred to herein as the
"EXPIRATION DATE." Notwithstanding the foregoing, the Company and Executive
agree that Executive is an "at-will" employee, subject only to the contractual
rights upon termination set forth herein, and that the Employment Period (a)
shall terminate automatically at any time upon Executive's death, (b) shall
terminate automatically at any time upon the Board's determination of
Executive's Disability, (c) may be terminated by the Company at any time for any
reason or no reason (whether for Cause or without Cause) by giving Executive
written notice of the termination, and (d) may be terminated by Executive for
any reason or no reason (including for Good Reason) by giving the Company
written notice at least sixty (60) days in advance of his termination date.
Notwithstanding anything herein to the contrary, in no event shall delivery of a
notice of non-renewal by the Company be deemed a termination without Cause. The
date that the Employment Period is terminated for any reason is referred to
herein as the "TERMINATION DATE."
2. Continuing Effect. The Employment Agreement, except as amended hereby, shall be and remain in full force and effect.
3. Counterparts. This Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed an original, and all such counterparts shall together constitute but one and the same instrument. Signature pages delivered by facsimile shall be binding to the same extent as an original.
* * * *
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the date first written above.
ALTRA INDUSTRIAL MOTION, INC.
By: ____________________________
Name: Carl Christenson
Title: President and Chief Operating Officer
ALTRA HOLDINGS, INC.
By: ____________________________
Name: Carl Christenson
Title: President and Chief Operating Officer
EXECUTIVE
EXHIBIT 10.23
ALTRA HOLDINGS, INC.
2004 EQUITY INCENTIVE PLAN
AMENDMENT TO RESTRICTED STOCK AWARD AGREEMENT
THIS AMENDMENT (this "Amendment"), dated as of , 2006, to that certain Restricted Stock Award Agreement, dated as of , (the "Agreement"), by and between Altra Holdings, Inc., a Delaware corporation (the "Company"), and (the "Participant"). Capitalized terms not defined herein shall have the meanings assigned to such terms in the Agreement.
WITNESSETH:
WHEREAS, on , the Board of Directors of the Company determined it to be desirable and in the best interests of the Company (and authorized the Company) to amend certain terms of the Agreement, with the consent of the Participant.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:
1. Amendment to Section 1. The definition of "Qualified Public Offering" in Section 1 of the Agreement is hereby amended and restated as follows:
"Qualified Public Offering" means any underwritten initial Public Offering.
2. Amendment to Section 3. Section 3 of the Agreement is hereby amended and restated as follows:
3. Forfeiture Restriction.
(a) Subject to the provisions of Sections 3(b) and 3(d) below, if the Participant ceases to be an Employee, director or consultant of the Company and each Subsidiary for any or no reason, all of the Unreleased Shares shall thereupon be forfeited immediately and without any further action by the Company (the "Forfeiture Restriction"). Upon the occurrence of such a forfeiture, the Company shall become the legal and beneficial owner of the Shares being forfeited and all rights and interests therein or relating thereto, and the Company shall have the right to retain and transfer to its own name the number of Shares being forfeited by the Participant.
(b) Provided that the Participant continues to be an employee, director or consultant of the Company or a Subsidiary on such date, the Shares shall be released from the Forfeiture Restriction as follows:
Release Date Percentage of Shares Released From Forfeiture Restriction ----------------------------------- --------------------------------------------------------- First anniversary of Issuance Date 20% Second anniversary of Issuance Date 40% Third anniversary of Issuance Date 60% Fourth anniversary of Issuance Date 80% Fifth anniversary of Issuance Date 100% |
(c) Notwithstanding anything to the contrary in this Agreement, no Unreleased Shares or any interest or right therein or part thereof shall be liable for the debts,
contracts or engagements of the Participant or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect.
(d) In the event that the Participant's employment is terminated by the Company at any time after a Qualified Public Offering (i) the Participant shall forfeit any Unreleased Shares issued to the Participant under this Agreement and such Shares shall be cancelled automatically and with no further action by the Company if the Participant's employment is terminated for Cause or the Participant resigns without Good Reason (as defined in Participant's Employment Agreement); and (ii) all of the Unreleased Shares issued to the Participant under this Agreement shall automatically be released and become fully vested with no further action by the Company if the Participant's employment is terminated for any reason other than Cause or Good Reason (as defined in the Participant's Employment Agreement) or the Participant's death or disability.
3. Continuing Effect. The Agreement, as amended hereby, shall be and remain in full force and effect.
4. Counterparts. This Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed an original, and all such counterparts shall together constitute but one and the same instrument. Signature pages delivered by facsimile shall be binding to the same extent as an original.
* * * *
IN WITNESS WHEREOF, the parties have executed this Amendment on the date first written above.
ALTRA HOLDINGS, INC. PARTICIPANT By: ____________________________ ___________________________ Name: [Name] |
Title:
Exhibit 10.24
TRANSITION AGREEMENT
This Transition Agreement (the "Agreement") is being entered into this __ day of __________, 2006 (the "Effective Date") by and between _________ and Altra Industrial Motion, Inc., its subsidiaries and affiliate companies (collectively, the "Company").
1. Except as otherwise provided herein, the term of this Agreement will be from the Effective Date until one year following the closing date of the sale (the "Closing Date") of the Altra Industrial Motion (the "Business) of the Company, unless earlier terminated as provided below.
2. During the term of this Agreement, you will continue to devote your entire business skill, time, and effort diligently to the affairs of the Business and you will perform all such duties, and otherwise conduct yourself, in a manner reasonably determined to promote the best interests of the Company.
3. Notwithstanding any other provision of this Agreement, your eligibility to receive from the Company a Severance Benefit under this Agreement is expressly contingent on the sale of all of the Business (whether in one transaction or several) or the sale of the business unit within the Business for which you provide services to a Buyer (or Buyers) on or before March 31, 2007. If neither all of the Business nor the business unit within the Business for which you provide services is sold before March 31, 2007, you shall not be eligible to receive any Severance Benefit pursuant to this Agreement and this Agreement shall terminate on April 1, 2007. For the purposes of this Agreement, a sale shall not be deemed to occur until the transaction closes, nor shall a sale be deemed to occur if the Company goes public.
4. Severance Benefit Eligibility
a. In addition to the requirements in Section 3 above, you will be eligible for a Severance Benefit only if: you satisfy the requirements of Section 5 and 6 herein; and if during the first year of your employment with the Buyer, your employment is terminated by the Buyer other than for Cause or you voluntarily resign for Good Reason.
b. If you are eligible for a Severance Benefit, it will be calculated based on 12 months of your base annual salary and will be paid to you in the form of salary continuation in accordance with the Company's regular payroll practices and procedures. The Severance Benefit also includes the following: if you elect to continue your health care and dental coverage through COBRA or any similar state law and provided you continue to authorize the required employee contributions for your share of the premiums, the Company will continue to pay its share of your premiums (at the same level of coverage as you have upon termination of employment) during the period of salary continuation. Please note that if you elect coverage
through COBRA, that such coverage begins after the benefits mentioned above end under the terms of this Agreement. For example, if you have 12 months of salary continuation, you will have the same amount of months of medical and dental coverage continuation before COBRA commences.
c. If payable, the Severance Benefit will not be included in determining the amount of any benefits under any of the Company's qualified or nonqualified employee benefit plans in which you may be a participant.
d. Any Severance benefit will cease immediately upon your securing employment after the end of your employment with the Company. You agree that if you do secure such employment during the period in which you are receiving Severance Benefit, you shall immediately notify the Company.
For purposes of this Agreement, the term "Cause" means: (i) your
conviction(including without limitation by plea of guilty or no
contest) of a misdemeanor crime involving fraud, dishonesty, or
moral turpitude; (ii) your willful misconduct or negligence in
the performance of your duties; (iii) your breach of this
Agreement or any other agreement between you and the Company; or
(iv) any breach of your fiduciary duty or act of fraud,
dishonesty, disloyalty, or embezzlement by you.
For purposes of this Agreement, the term "Good Reason" means: (i) a material diminution in your job responsibilities or (ii) a material reduction in your compensation or bonus opportunities.
5. To be eligible for a Severance Benefit, you must execute and deliver to the Company a General Release of Claims ("General Release") in the form attached hereto as Exhibit 1 or in such other form as the Company reasonably determines appropriate. You understand that you shall sign the General Release no earlier than the first business day after the last day of your employment.
6. In further consideration for the benefits described in Section 4 above, you agree to the following:
a. Return of Property; Intellectual Property Rights. Upon your termination of employment for any reason with the Company or at any time requested by the Company, you will return all property owned by the Company or containing information relating to the Company's business or customers, including files, documents, data and records (whether on paper, tapes, disks, or in any form, electronic or otherwise), office equipment, credit cards, and employee identification cards. You acknowledge that the Company is the rightful owner of any programs, ideas, inventions, discoveries, copyright material, or trademarks that
you may have originated or developed, or assisted in originating or developing, during your period of employment with the Company, where any such origination or development involved the use of Company time or resources, or the exercise of your responsibilities for or on behalf of the Company. You will at all times, both before and after termination of employment cooperate with the Company in executing and delivering documents and taking any other actions that are necessary or requested by the Company to assist the Company in patenting, copyrighting, or registering any programs, ideas, inventions, discoveries, copyright material, or trademarks, and to vest title thereto in the Company.
b. Proprietary and Confidential Information. You will at all times both during and after your employment with the Company preserve the confidentiality of all proprietary or confidential information and trade secrets of the Company, except to the extent that disclosure of such information is legally required, authorized in writing by the Company, or necessary in the performance of your duties on behalf of the Company. The phrase "proprietary or confidential information" includes without limitation information that has not been disclosed to the public or that has been disclosed to the public wrongfully or in breach of the disclosing party's obligations to the Company and that is treated as confidential within the business of the Company, such as strategic or tactical business plans; financial data, ideas, processes, methods, techniques, systems, patented or copyrighted information; documents relating to regulatory matters and correspondence with governmental entities; information concerning any past, pending, or threatened legal dispute; pricing and cost data; reports and analyses of business prospects; business transactions which are contemplated or planed; research data; personnel information and data; identities or lists of or information regarding users, purchasers, or customers of any of the Company's products or services; and other confidential matters pertaining to or known by the Company, including confidential information of a third party which you know or should know the Company is bound to protect.
c. Interference with Business Relations. During the period of your employment with the Company except in accordance with your duties and responsibilities on behalf of the Company, and for a period ending 24 months following your termination of employment from the Company for any reason, you will not, without the prior written consent of the Company, directly or indirectly on behalf of yourself or any other entity: (i) recruit, solicit, or hire any employee of the Company (or any person who had been employed by the Company within six months following your last day of employment with the Company) for employment or for retention as a consultant or service provider; (ii) solicit or induce, or in any manner attempt to solicit or induce, any client, customer, or prospective client or customer of the Company to
cease being, or not to become, a customer of the Company, or to divert any business of such customer or prospective customer or client from the Company; or (iii) otherwise interfere with, disrupt, or attempt to interfere with or disrupt, the relationship, contractual or otherwise, between the Company and any of its customers, clients, prospective customers or clients, suppliers, consultants, or employees.
d. You agree that for a period of two (2) years from the date of your termination, you will not accept employment with, provide advice, consulting services, or in any other capacity work for or provide services to companies that directly compete with the Company, including but not limited to the following companies (a list of Companies will be included when/if this document becomes officially effective) including their successors, assigns, parents, subsidiaries, divisions, or affiliates for one year following your termination date.
e. You agree that for two (2) full years from your termination date, you shall not solicit or service orders from (a list of Customers will be included here when/if this document becomes officially effective) for the purchase of products similar to those the Company manufactures and sells.
f. Other Agreements and Policies. The obligations imposed on you by this Section 6 are in addition to, and not in lieu of, any and all other policies or agreements of the Company regarding the subject matter of the foregoing obligations.
7. You acknowledge that the Company's customers and prospective customers are national and international in scope and that the terms of these covenants are necessary and reasonable and will not prevent you from earning a livelihood. You agree that your agreement to these covenants is a material inducement to the Company to enter into this Agreement and to make possible to you the benefits provided in this Agreement. You further agree that money damages may be insufficient as remedy for your breach of these covenants. Accordingly, you agree that, in addition to any other relief that may be available, the Company shall be entitled to specifically enforce these covenants, including without limitation by means of temporary, preliminary, and permanent injunctive relief. You also agree that should any court of competent jurisdiction find any portion of these covenants to be unenforceable for any reason, that the court shall modify such portion so that it is enforceable then enforce the covenant as modified. You further agree that if the Court is unwilling or unable to make such a modification, then it shall sever the unenforceable provision and shall enforce the remaining portions of these covenants as fully as possible so as to achieve the original intent of these covenants.
8. The Company will endeavor to have the Buyer assume this Agreement. If the Buyer assumes the Agreement, the Company will assign all of its rights and obligation under this Agreement to the Buyer; and if the Company makes such an assignment, all references in this Agreement (not including section 7) to "Company" will be deemed to refer to the Buyer on and after the effective date of such assignment, unless the context clearly requires a contrary meaning. The Company may otherwise assign its rights and obligations under this Agreement to another entity with or without your consent. Upon any assumption or assignment provided in this Section 7, the Company shall owe no further obligation to you under this Agreement. You may not assign your rights and obligations under this Agreement.
9. The payment of any benefits under this Agreement will be in lieu of, and not in addition to, any separation or severance benefits to which you may otherwise be entitled from the Company. In addition, no provision of this Agreement will require the Company to provide you with any payment, benefit, or grant that duplicates any payment, benefit or grant that you are entitled to receive under any Company compensation or benefit plan or other agreement or arrangement.
10. Nothing in this Agreement shall be construed as a right to continued employment with the Company and nothing in this Agreement limits the Company's right to terminate your employment with the Company at any time (including prior to the Closing Date) with or without cause or notice. The term of this Agreement shall end on your last day of employment if the term has not already ended.
11. Failure to insist upon strict compliance with any of the terms, covenants, or conditions of this Agreement will not be deemed a waiver of such term, covenant, or condition, nor will any waiver or relinquishment of any tight or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times.
12. The Company may withhold from any benefits payable under this Agreement all taxes, deductions, and withholdings that the Company determines to be required pursuant to any law, regulation, or ruling. However, it is your obligation to pay all required taxes on any amounts provided under this Agreement, regardless of whether withholding is required.
13. Except to the extent otherwise required by law, you will not disclose, in whole or in part, any of the terms of this Agreement. However, you may disclose the terms of this Agreement to your spouse and to your legal or financial advisor, provided that you take all reasonable measures to assure that he or she does not disclose the terms of this Agreement to a third party except as otherwise required by law. In addition, notwithstanding anything in this paragraph to the
contrary, you may disclose to any and all persons, without limitation or any kind, the tax treatment and tax structure of the transaction and all materials of any kind (including opinions and other tax analyses) that are provided to you relating to such tax treatment and tax structure.
14. Dispute Resolution.
a. The parties agree that, except for any claims pursuant to Section 6 of this Agreement, they shall submit to arbitration and resolve in accordance with the procedures specified in this Section 13 any and all disputes arising from or relating to this Agreement. The parties further agree that the arbitration process agreed upon herein shall be the exclusive means for resolving all disputes made subject to arbitration herein.
b. Notwithstanding any other choice of law provisions in the Agreement, the interpretation and enforcement of the arbitration provisions of this Agreement shall be governed exclusively by the Federal Arbitration Act ("FAA"), and shall otherwise be governed by the law of the State of Delaware.
c. These arbitration provisions shall not prevent the Company from obtaining injunctive relief from a court of competent jurisdiction to enforce any obligations of the Agreement; including without limitation issues concerning covenants not to compete, the use of trade secrets or confidential commercial information (which are excluded from this arbitration process as set forth above), or any other matters for which the Company in its sole discretion may require provisional relief pending a decision on the merits by the arbitrator.
d. Any arbitration hereunder shall be conducted under the Model Employment Procedures of the American Arbitration Association ("AAA"), as modified herein, and, unless otherwise agreed by the parties, shall take place in Boston, Massachusetts, at a place designated by the AAA.
e. Each party shall be responsible for its costs (including attorneys' fees) incurred in any arbitration, and the arbitrator shall not have the authority to include all or any portion of said costs (including attorneys' fees) in an award, regardless of which party prevails. The costs and fees of the arbitrator and of the AAA shall be borne equally by the parties.
f. Except as set forth herein, the arbitrator shall have authority to award any remedy or relief that a court of the State of Delaware could grant in conformity to applicable law.
g. With respect to any claims pursuant to section 6 of this Agreement, such claims too will be governed by the law of the State of Delaware, and both you and the Company agree to and submit to the jurisdiction and venue of any state or federal court located in the state where the Company maintains its headquarters.
15. The provisions contained in this Agreement and within the General Release will each constitute a separate agreement independently supported by good and adequate consideration, and will each be severable from the other provisions of the Agreement and the General Release. If a court of competent jurisdiction or an arbitrator determines that any term, provision, or portion of this Agreement or the General Release is void, illegal, or unenforceable, the other terms, provisions, and portions of this Agreement and General Release will remain in full force and effect, and the terms, provisions, and portions that are determined to be void, illegal, or unenforceable will either be limited so that they will remain in effect to the extent permissible by law, or such court or arbitrator will substitute, to the extent enforceable, provisions similar thereto or other provisions, so as to provide to the Company and you, to the fullest extent permitted by applicable law, the benefits intended by this Agreement and the General Release.
16. The provisions of this Agreement as well as the General Release shall survive the termination of this Agreement according to their terms.
17. This Agreement sets forth the entire understanding of you and the Company with respect to severance or separation pay matters, and supersedes all prior agreements and communications, whether oral or written, between you and the Company regarding such matters. This Agreement will not be modified except by the written agreement of you and the Company.
18. You acknowledge that you have read and understand this Agreement and execute it voluntarily and without coercion. You further acknowledge that you have been advised in writing of your opportunity to consult with counsel and that you have been given a more than sufficient period of time to consider the terms of this Agreement.
Please indicate your acceptance by signing below.
AGREED TO AND ACCEPTED BY:
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EXHIBIT 21.1
SUBSIDIARIES OF ALTRA HOLDINGS, INC.
JURISDICTION OF NAME OF SUBSIDIARY ORGANIZATION - Altra Industrial Motion, Inc. Delaware - American Enterprises MPT Corp. Delaware - Nuttall Gear LLC Delaware - American Enterprises MPT Holdings, LLC Delaware - Ameridrives International, LLC Delaware - Formsprag LLC Delaware - Warner Electric LLC Delaware - Warner Electric Technology LLC Delaware - Boston Gear LLC Delaware - The Kilian Company Delaware - Kilian Manufacturing Corporation Delaware - 3091780 Nova Scotia Company Nova Scotia, Canada - Kilian Canada, ULC Nova Scotia, Canada - Warner Electric International Holding, Inc. Delaware - Warner Electric (Holdings) SAS France - Warner Electric Europe SAS France - Warner Electric Group GmbH Germany - Warner Electric Verwaltungs GmbH Germany - Stieber GmbH Germany - Warner Electric (Netherlands) Holding, B.V. Netherlands - Warner Electric Australia Pty. Ltd. Australia - Warner Shui Hing Limited Hong Kong - Warner Electric (Singapore) Ltd. Singapore - Warner Electric (Taiwan) Ltd. Taiwan - Warner Electric (Thailand) Ltd. Thailand - Warner Electric UK Group Ltd. United Kingdom - Warner Electric UK Holding Ltd. United Kingdom - Wichita Company Ltd. United Kingdom - Hay Hall Holdings Limited United Kingdom - The Hay Hall Group Limited United Kingdom - Matrix International, Ltd. United Kingdom - Matrix International GmbH Germany - Inertia Dynamics, LLC Delaware - Bibby Group Ltd. United Kingdom - Bibby Transmissions Ltd. United Kingdom - Bibby Turboflex SA South Africa - Scandicom AB Sweden - Turboflex Ltd. United Kingdom [ ] Torsiflex Ltd. United Kingdom - Rathi Turboflex Pty Ltd India - Huco Power Transmission, Ltd. United Kingdom - Huco Engineering Industries Ltd. United Kingdom - Dynatork Air Motors Ltd. United Kingdom - Dynatork, Ltd. United Kingdom - Twiflex Ltd. United Kingdom - Safetek Ltd. United Kingdom - Turboflex Ltd. United Kingdom [ ] Torsiflex Ltd. United Kingdom - Rathi Turboflex Pty Ltd India - Huco Power Transmission, Ltd. United Kingdom - Huco Engineering Industries Ltd. United Kingdom - Dynatork Air Motors Ltd. United Kingdom - Dynatork, Ltd. United Kingdom - Twiflex Ltd. United Kingdom - Safetek Ltd. United Kingdom |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption "Experts" and to the use of our report dated September 25, 2006, in Amendment #4 to the Registration Statement (Form S-1/A No. 333-137660) and related Prospectus of Altra Holdings, Inc. for the registration of shares of its common stock.
/s/ Ernst & Young LLP Boston, Massachusetts November 30, 2006 |
Exhibit 23.2
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting a part of this Registration Statement (Form S-1 No. 333-137660) of our report dated 8 June 2006 related to Hay Hall Holdings Limited, which are contained in that Prospectus.
We also consent to the reference to us under the caption "Experts" in the Prospectus.
/s/ BDO Stoy Hayward LLP BDO Stoy Hayward LLP Birmingham, United Kingdom 30 November 2006 |