-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DE3BHcJAo8QTcH4mTDNZWSJy//m/HPo7YXYi7/5FzWLNf0672fpox4ONuwAuELb7 5syVFgW7IzTdeIdUSsIPOA== 0000893750-03-000162.txt : 20030228 0000893750-03-000162.hdr.sgml : 20030228 20030228164205 ACCESSION NUMBER: 0000893750-03-000162 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20030228 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TIMKEN CO CENTRAL INDEX KEY: 0000098362 STANDARD INDUSTRIAL CLASSIFICATION: BALL & ROLLER BEARINGS [3562] IRS NUMBER: 340577130 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-10450 FILM NUMBER: 03587193 BUSINESS ADDRESS: STREET 1: 1835 DUEBER AVE SW CITY: CANTON STATE: OH ZIP: 44706-2798 BUSINESS PHONE: 3304713078 FORMER COMPANY: FORMER CONFORMED NAME: TIMKEN ROLLER BEARING CO DATE OF NAME CHANGE: 19710304 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: INGERSOLL RAND CO CENTRAL INDEX KEY: 0000050485 STANDARD INDUSTRIAL CLASSIFICATION: GENERAL INDUSTRIAL MACHINERY & EQUIPMENT [3560] IRS NUMBER: 135156640 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 200 CHESTNUT RIDGE RD STREET 2: PO BOX 8738 CITY: WOODCLIFF LAKE STATE: NJ ZIP: 07677 BUSINESS PHONE: 2015730123 MAIL ADDRESS: STREET 1: 200 CHESTNUT RIDGE ROAD CITY: WOODCLIFF LAKE STATE: NJ ZIP: 07677 SC 13D 1 sch_13d.txt SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ---------------- SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) THE TIMKEN COMPANY ---------------------------------------- (Name of Issuer) Common Stock Without Par Value ---------------------------------------- (Title of Class of Securities) 456866102 ---------------------------------------- (CUSIP Number) Senior Vice President, General Counsel Ingersoll-Rand Company 200 Chestnut Ridge Road Woodcliff Lake, New Jersey 07677 (201) 573-3473 ----------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 18, 2003 ----------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [_]. (Page 1 of 17 Pages) ------------------ Page 2 of 17 Pages ------------------ ________________________________________________________________________________ 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Ingersoll-Rand Company 13-5156640 ________________________________________________________________________________ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_] (b) [_] ________________________________________________________________________________ 3 SEC USE ONLY ________________________________________________________________________________ 4 SOURCE OF FUNDS: OO ________________________________________________________________________________ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] ________________________________________________________________________________ 6 CITIZENSHIP OR PLACE OF ORGANIZATION: New Jersey ________________________________________________________________________________ 7 SOLE VOTING POWER 0 NUMBER OF SHARES _________________________________________________________________ 8 SHARED VOTING POWER BENEFICIALLY 9,395,973 OWNED BY _________________________________________________________________ EACH 9 SOLE DISPOSITIVE POWER 0 REPORTING PERSON _________________________________________________________________ 10 SHARED DISPOSITIVE POWER WITH 9,395,973 ________________________________________________________________________________ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 9,395,973 ________________________________________________________________________________ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_] ________________________________________________________________________________ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 11.22% ________________________________________________________________________________ 14 TYPE OF REPORTING PERSON: CO ________________________________________________________________________________ ------------------ Page 3 of 17 Pages ------------------ ________________________________________________________________________________ 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Ingersoll-Rand (Barbados) Holding Incorporated c/o David King & Co. First Floor Trident House Lower Broad Street Bridgetown, Barbados ________________________________________________________________________________ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_] (b) [_] ________________________________________________________________________________ 3 SEC USE ONLY: ________________________________________________________________________________ 4 SOURCE OF FUNDS: OO ________________________________________________________________________________ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] ________________________________________________________________________________ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Barbados ________________________________________________________________________________ 7 SOLE VOTING POWER 0 NUMBER OF SHARES _________________________________________________________________ 8 SHARED VOTING POWER BENEFICIALLY 9,395,973 OWNED BY _________________________________________________________________ EACH 9 SOLE DISPOSITIVE POWER 0 REPORTING PERSON _________________________________________________________________ 10 SHARED DISPOSITIVE POWER WITH 9,395,973 ________________________________________________________________________________ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 9,395,973 ________________________________________________________________________________ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_] ________________________________________________________________________________ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 11.22% ________________________________________________________________________________ 14 TYPE OF REPORTING PERSON: CO ________________________________________________________________________________ ------------------ Page 4 of 17 Pages ------------------ ________________________________________________________________________________ 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Ingersoll-Rand Global Holding Company Limited Clarendon House 2 Church Street Hamilton HM 11 Bermuda ________________________________________________________________________________ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_] (b) [_] ________________________________________________________________________________ 3 SEC USE ONLY: ________________________________________________________________________________ 4 SOURCE OF FUNDS: OO ________________________________________________________________________________ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] ________________________________________________________________________________ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Bermuda ________________________________________________________________________________ 7 SOLE VOTING POWER 0 NUMBER OF SHARES _________________________________________________________________ 8 SHARED VOTING POWER BENEFICIALLY 9,395,973 OWNED BY _________________________________________________________________ EACH 9 SOLE DISPOSITIVE POWER 0 REPORTING PERSON _________________________________________________________________ 10 SHARED DISPOSITIVE POWER WITH 9,395,973 ________________________________________________________________________________ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 9,395,973 ________________________________________________________________________________ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_] ________________________________________________________________________________ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 11.22% ________________________________________________________________________________ 14 TYPE OF REPORTING PERSON: CO ________________________________________________________________________________ ------------------ Page 5 of 17 Pages ------------------ ________________________________________________________________________________ 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Ingersoll-Rand Company Limited Clarendon House 2 Church Street Hamilton HM 11 Bermuda ________________________________________________________________________________ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_] (b) [_] ________________________________________________________________________________ 3 SEC USE ONLY: ________________________________________________________________________________ 4 SOURCE OF FUNDS: OO ________________________________________________________________________________ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] ________________________________________________________________________________ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Bermuda ________________________________________________________________________________ 7 SOLE VOTING POWER 0 NUMBER OF SHARES _________________________________________________________________ 8 SHARED VOTING POWER BENEFICIALLY 9,395,973 OWNED BY _________________________________________________________________ EACH 9 SOLE DISPOSITIVE POWER 0 REPORTING PERSON _________________________________________________________________ 10 SHARED DISPOSITIVE POWER WITH 9,395,973 ________________________________________________________________________________ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 9,395,973 ________________________________________________________________________________ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_] ________________________________________________________________________________ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 11.22% ________________________________________________________________________________ 14 TYPE OF REPORTING PERSON: CO ________________________________________________________________________________ ------------------ Page 6 of 17 Pages ------------------ Item 1. Security and Issuer. This statement on Schedule 13D (the "Schedule 13D") relates to the common stock without par value (the "Timken Common Stock") of The Timken Company, an Ohio corporation ("Timken"). The address of the principal executive office of Timken is 11835 Duebler Avenue, S.W., Canton, Ohio 44706. Item 2. Identity and Background. This Schedule 13D is filed on behalf of: (i) Ingersoll-Rand Company, a New Jersey corporation ("IR"); (ii) Ingersoll-Rand (Barbados) Holding Incorporated ("IRBHI"), a Barbados corporation, in its capacity as the parent company of IR; (iii) Ingersoll-Rand Global Holding Company Limited ("IRGHC"), a Bermuda corporation, in its capacity as the parent company of IRBHI; and (iv) Ingersoll-Rand Company Limited ("IR Bermuda"), a Bermuda corporation, in its capacity as the parent company of IRGHCL (together with IR, IRBHI and IRGHC, the "Reporting Persons"). Through its subsidiaries, including IR, IRBHI and IRGHC, IR Bermuda is a leading innovation and solutions provider for the major global markets of Security and Safety, Climate Control, Industrial Solutions and Infrastructure. The address of the principal executive office of IR is 200 Chestnut Ridge Road, Woodcliff Lake, New Jersey 07677. The address of the principal executive office of IRBHI is c/o David King & Co., First Floor, Trident House, Lower Broad Street, Bridgetown, Barbados. The address of the principal executive office of IRGHC is Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda. The address of the principal executive office of IR Bermuda is Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda. To the best of the knowledge of the Reporting Persons as of the date hereof, the name, business address, present principal occupation or employment and citizenship of each executive officer and director of the Reporting Persons, and the name, principal business and address of any corporation or other organization in which such employment is conducted is set forth in Schedule I hereto. The information contained in Schedule I is incorporated herein by reference. During the last five years, none of the Reporting Persons nor, to the best of the knowledge of the Reporting Persons, any of the executive officers or directors of the Reporting Persons listed in Schedule I hereto, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or ------------------ Page 7 of 17 Pages ------------------ mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. On February 18, 2003, pursuant to a Stock and Asset Purchase Agreement (the "Purchase Agreement"), dated as of October 16, 2002, among IR Bermuda, on behalf of itself, IR and the other sellers named therein, and Timken, on behalf of itself and the other buyers named therein, Timken acquired the Engineered Solutions business segment of IR Bermuda (the "Transaction"). Engineered Solutions comprises IR Bermuda's worldwide operations relating to precision bearings and motion-control components and assemblies, and includes the Torrington, Fafnir, Kilian, Nadella and IRB brands. In consideration for the sale pursuant to the Purchase Agreement, IR Bermuda and the other applicable sellers (including IR) received $700 million in cash and IR received 9,395,973 shares of Timken Common Stock to which this report relates. IR Bermuda filed a copy of the Purchase Agreement as Exhibit 2.1 to its current report on Form 8-K dated October 17, 2002 (the "8-K"). References to, and descriptions of, the Purchase Agreement as set forth above in this Item 3 are not intended to be complete and are qualified in their entirety by reference to the full text of such agreement, a copy of which has previously been filed as Exhibit 2.1 to IR Bermuda's 8-K and is incorporated herein by reference. Item 4. Purpose of the Transaction. IR acquired 9,395,973 shares of Timken Common Stock as consideration for the sale by IR Bermuda and its subsidiaries, including IR, to Timken of the shares and assets comprising IR Bermuda's Engineered Solutions business segment pursuant to the Purchase Agreement. References to, and descriptions of, the Purchase Agreement as set forth above in this Item 4 are not intended to be complete and are qualified in their entirety by reference to the full text of such agreement, a copy of which has previously been filed as Exhibit 2.1 to IR Bermuda's 8-K and is incorporated therein by reference. The Reporting Persons have no present plans or proposals which relate to or would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D. Item 5. Interest in Securities of Timken. Pursuant to the Transaction, IR acquired 9,395,973 shares of Timken Common Stock, which comprises 11.22% of the outstanding shares of Timken Common Stock. By virtue of the relationships described under Item 2, each of IRBHI, IRGHC and IR Bermuda may be deemed to be the indirect beneficial owner of the 9,395,973 shares of Timken Common Stock (which comprises 11.22% of the outstanding shares of Timken Common Stock) directly owned by IR. By virtue of the relationships described under Item 2, each of IR, IRBHI, IRGHC and IR Bermuda may be deemed to have shared power to vote, or direct the voting of, and dispose, or ------------------ Page 8 of 17 Pages ------------------ direct the disposition of, the 9,395,973 shares of Timken Common Stock (which comprises 11.22% of the outstanding shares of Timken Common Stock) directly owned by IR. Other than as set forth in this Schedule 13D, including Schedule I hereto, to the best of the knowledge of the Reporting Persons as of the date hereof, (i) none of the Reporting Persons nor any of their respective executive officers or directors beneficially owns any shares of Timken Common Stock and (ii) there have been no transactions in the shares of Timken Common Stock effected during the past 60 days by the Reporting Persons or any of their respective executive officers or directors. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of Timken. Standstill and Voting Agreement. Pursuant to the Purchase Agreement, IR and Timken entered into a Standstill and Voting Agreement, dated as of February 18, 2003 (the "Standstill and Voting Agreement"). Pursuant to the Standstill and Voting Agreement, until the third anniversary of the date on which IR and IR Bermuda in the aggregate cease to own at least 4,272,890 shares of Timken Common Stock, IR and IR Bermuda have agreed that neither IR nor IR Bermuda will acquire any Timken Common Stock or other securities of Timken entitled to vote for the election of directors of Timken or any security convertible into or exchangeable for such securities (the "Securities"), subject to certain exceptions set forth in Section 3.1(a) of the Standstill and Voting Agreement. Until the third anniversary referred to above, subject to certain exceptions specified in the Standstill and Voting Agreement, IR and IR Bermuda have also agreed that neither IR nor IR Bermuda will (i) make any offer or proposals with respect to a merger or other business combination transaction involving Timken, (ii) enter into any voting agreement or arrangement with respect to the voting of its Securities (except as described below), (iii) engage in discussions or negotiations to induce others to enter into any transaction involving a change of control of Timken, (iv) join a group with respect to the ownership of Securities or (v) take other specified actions seeking to influence a change of control of Timken's management or affairs. In addition, the Standstill and Voting Agreement provides that until IR and IR Bermuda cease in the aggregate to beneficially own at least 4,272,890 shares of Timken Common Stock, IR and IR Bermuda are required, subject to certain exceptions in connection with the approval of certain specified transactions set forth in the Standstill and Voting Agreement, to vote its Securities in proportion to the votes cast by the other holders of Securities and may not solicit proxies in connection with any matter as to which the above obligation applies. In addition, pursuant to the Standstill and Voting Agreement, during the six-month period following the consummation of the Transaction, IR and IR Bermuda have agreed not to transfer any Securities, except for transfers (i) to an affiliate of IR or IR Bermuda that agrees to be bound by the terms of the Standstill and Voting Agreement, (ii) in connection with granting certain security interests or other encumbrances to financial institutions, (iii) in accordance with its rights under the Registration Rights Agreement described below or (iv) pursuant to a merger, consolidation or other similar transaction involving Timken which is approved by the stockholders of Timken. Without limiting the preceding sentence, until IR and ------------------ Page 9 of 17 Pages ------------------ IR Bermuda cease in the aggregate to own at least 4,272,890 shares of Timken Common Stock, IR and IR Bermuda have agreed not to transfer any Securities in a transaction that, to the knowledge of IR, would result in any person or group beneficially owning more than 5% of the outstanding Timken Common Stock, other than (A) pursuant to a registration statement or (B) pursuant to a transaction described in clauses (i) through (iv) above. In the event of certain tender offers or exchange offers, IR and IR Bermuda will generally have the right to transfer its Securities in such transaction free of any restrictions on transfer set forth in the Standstill and Voting Agreement. Registration Rights Agreement. Pursuant to the Purchase Agreement, IR and Timken entered into a Registration Rights Agreement, dated as of February 18, 2003 (the "Registration Rights Agreement"), pursuant to which IR has been granted certain registration rights by Timken. The registration rights cover the registration of the shares of Timken Common Stock issued to IR in connection with the consummation of the Transaction, any securities issued upon the transfer or in substitution for such shares and any securities issued with respect to such shares by way of certain transactions (the "Registrable Securities"). The Registration Rights Agreement requires Timken to register the Registrable Securities pursuant to a shelf registration statement covering the sales from time to time of Registrable Securities. Holders of Registrable Securities are entitled to demand two underwritten offerings of Registrable Securities pursuant to that shelf registration statement so long as those underwritten offerings cover no less than 25% of the Registrable Securities originally held by IR (or, if less than that number of Registrable Securities are Registrable Securities, all of the remaining Registrable Securities). The holders of Registrable Securities also have the right to participate in all registrations of Timken Common Stock by Timken on behalf of itself or any other party, other than registrations on Forms S-4 or S-8. These demand and incidental registration rights are subject to customary restrictions and limitations. Timken has agreed to pay all registration expenses in connection with the registration of the Registrable Securities, except that underwriting discounts will be at the expense of the holders of Registrable Securities. In connection with any registration statement filed pursuant to the Registration Rights Agreement, Timken and the holders of Registrable Securities have agreed to indemnify each other against certain liabilities, including certain liabilities under the Securities Act. References to, and descriptions of, the Standstill and Voting Agreement and the Registration Rights Agreement as set forth above in this Item 6 are not intended to be complete and are qualified in their entirety by reference to the full text of such agreements, copies of which are set forth as exhibits to this Schedule 13D and are incorporated herein by reference. To the best of IR's knowledge, except as described in this Schedule 13D, there are at present no other contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 above and between any such person and any person with respect to any securities of Timken. ------------------- Page 10 of 17 Pages ------------------- Item 7. Material to be Filed as Exhibits. Exhibit Description - ------- ----------- 1. Stock and Asset Purchase Agreement, dated as of October 16, 2002, among Ingersoll-Rand Company Limited, on behalf of itself and the other sellers named therein, and the Timken Company, on behalf of itself and the other buyers names therein, incorporated by reference to Exhibit 2.1 on the Form 8-K filed by Ingersoll-Rand Company Limited on October 17, 2002. 2. Amendment to Stock and Asset Purchase Agreement dated as of February 18, 2003, amending the Stock Purchase Agreement, dated as of October 16, 2002, between Ingersoll-Rand Company Limited, on behalf of itself and certain of its subsidiaries and The Timken Company, on behalf of itself and certain of its subsidiaries. 3. Standstill and Voting Agreement, dated as of February 18, 2003, between The Timken Company, Ingersoll-Rand Company and Ingersoll-Rand Company Limited. 4. Registration Rights Agreement, dated as of February 18, 2003, between The Timken Company and Ingersoll-Rand Company. 5. Joint Filing Agreement relating to the filing of this Schedule 13D, as required by Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended. ------------------- Page 11 of 17 Pages ------------------- SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. INGERSOLL-RAND COMPANY INGERSOLL-RAND (BARBADOS) HOLDING INCORPORATED INGERSOLL-RAND GLOBAL HOLDING COMPANY LIMITED INGERSOLL-RAND COMPANY LIMITED By /s/ Patricia Nachtigal ----------------------- Patricia Nachtigal Senior Vice President General Counsel Dated: February 28, 2003 ------------------- Page 12 of 17 Pages ------------------- SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF INGERSOLL-RAND COMPANY The following table sets forth the name, business address and present principal occupation or employment of each director and executive officer of Ingersoll-Rand Company. Each such person is a U.S. citizen. Board of Directors
- ------------------------------------ ------------------------------------ ------------------------------------ Name and Title Business Address Present Principal Occupation - ------------------------------------ ------------------------------------ ------------------------------------ Patricia Nachtigal c/o Ingersoll-Rand Company Senior Vice President and General Director, Senior Vice 200 Chestnut Ridge Road, Counsel, Ingersoll-Rand Company President and General Counsel Woodcliff Lake, New Jersey 07677 Limited. - ------------------------------------ ------------------------------------ ------------------------------------ Gerald E. Swimmer c/o Ingersoll-Rand Company Vice President, Ingersoll-Rand Director, Vice President 200 Chestnut Ridge Road, Company Limited. Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------ Ronald E. Heller c/o Ingersoll-Rand Company Vice President, Deputy General Director, Vice President, Deputy 200 Chestnut Ridge Road, Counsel & Secretary, Ingersoll- General Counsel and Secretary Woodcliff Lake, New Jersey 07677 Rand Company Limited. - ------------------------------------ ------------------------------------ ------------------------------------
Executive Officers Who Are Not Directors
- ------------------------------------ ------------------------------------ ------------------------------------ Name and Title Business Address Present Principal Occupation - ------------------------------------ ------------------------------------ ------------------------------------ Herbert L. Henkel, c/o Ingersoll-Rand Company Chairman, President and Chief President and Chief 200 Chestnut Ridge Road, Executive Officer, Ingersoll-Rand Executive Officer Woodcliff Lake, New Jersey 07677 Company Limited. - ------------------------------------ ------------------------------------ ------------------------------------ Gordon A. Mapp, Senior c/o Ingersoll-Rand Company Senior Vice President, Sector Vice President 200 Chestnut Ridge Road, President, Climate Control, Woodcliff Lake, New Jersey 07677 Ingersoll-Rand Company Limited. - ------------------------------------ ------------------------------------ ------------------------------------ Timothy R. McLevish, c/o Ingersoll-Rand Company Senior Vice President and Chief Senior Vice President and 200 Chestnut Ridge Road, Financial Officer, Ingersoll-Rand Chief Financial Officer Woodcliff Lake, New Jersey 07677 Company Limited. - ------------------------------------ ------------------------------------ ------------------------------------ Donald H. Rice, Senior c/o Ingersoll-Rand Company Senior Vice President, Global Vice President 200 Chestnut Ridge Road, Business Services and Human Woodcliff Lake, New Jersey 07677 Resources, Ingersoll-Rand Company Limited. - ------------------------------------ ------------------------------------ ------------------------------------ ------------------- Page 13 of 17 Pages ------------------- - ------------------------------------ ------------------------------------ ------------------------------------ Randy P. Smith, Senior c/o Ingersoll-Rand Company Senior Vice President and Sector Vice President 200 Chestnut Ridge Road, President, Security and Safety, Woodcliff Lake, New Jersey 07677 Ingersoll-Rand Company Limited. - ------------------------------------ ------------------------------------ ------------------------------------ John E. Turpin, Senior c/o Ingersoll-Rand Company Senior Vice President and Sector Vice President 200 Chestnut Ridge Road, President, Industrial Solutions, Woodcliff Lake, New Jersey 07677 Ingersoll-Rand Company Limited. - ------------------------------------ ------------------------------------ ------------------------------------ Christopher P. Vasiloff, c/o Ingersoll-Rand Company Senior Vice President and Sector Senior Vice President 200 Chestnut Ridge Road, President, Infrastructure Sector, Woodcliff Lake, New Jersey 07677 Ingersoll-Rand Company Limited. - ------------------------------------ ------------------------------------ ------------------------------------ Richard W. Randall, Vice c/o Ingersoll-Rand Company Vice President and Controller, President and Controller 200 Chestnut Ridge Road, Ingersoll-Rand Company Limited. Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------
DIRECTORS AND EXECUTIVE OFFICERS OF INGERSOLL-RAND GLOBAL HOLDING COMPANY LIMITED The following table sets forth the name, business address and present principal occupation or employment of each director and executive officer of Ingersoll-Rand Global Holding Company Limited. Each such person is a U.S. citizen. Board of Directors
- ------------------------------------ ------------------------------------ ------------------------------------ Name and Title Business Address Present Principal Occupation - ------------------------------------ ------------------------------------ ------------------------------------ Ronald G. Heller, c/o Ingersoll-Rand Company Vice President, Deputy General Director, Vice President 200 Chestnut Ridge Road, Counsel & Secretary, Ingersoll- and Assistant Secretary Woodcliff Lake, New Jersey 07677 Rand Company Limited. - ------------------------------------ ------------------------------------ ------------------------------------ Patricia Nachtigal c/o Ingersoll-Rand Company Senior Vice President and General Director, Senior Vice 200 Chestnut Ridge Road, Counsel, Ingersoll-Rand Company President and General Counsel Woodcliff Lake, New Jersey 07677 Limited. - ------------------------------------ ------------------------------------ ------------------------------------ Gerald E. Swimmer c/o Ingersoll-Rand Company Vice President, Ingersoll-Rand Director, Vice President 200 Chestnut Ridge Road, Company Limited. Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------
------------------- Page 14 of 17 Pages ------------------- Executive Officers Who Are Not Directors
- ------------------------------------ ------------------------------------ ------------------------------------ Name and Title Business Address Present Principal Occupation - ------------------------------------ ------------------------------------ ------------------------------------ Peter Hong, Vice President and c/o Ingersoll-Rand Company Vice President and Treasurer, Treasurer 200 Chestnut Ridge Road, Ingersoll-Rand Company Limited Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------
DIRECTORS AND EXECUTIVE OFFICERS OF INGERSOLL-RAND (BARBADOS) HOLDING INCORPORATED The following table sets forth the name, business address and present principal occupation or employment of each director and executive officer of Ingersoll-Rand Barbados Holding Incorporated. Each such person is a U.S. citizen. Board of Directors
- ------------------------------------ ------------------------------------ ------------------------------------ Name and Title Business Address Present Principal Occupation - ------------------------------------ ------------------------------------ ------------------------------------ Ronald G. Heller, c/o Ingersoll-Rand Company Vice President, Deputy General Director & Vice President 200 Chestnut Ridge Road, Counsel & Secretary, Ingersoll- and Assistant Secretary Woodcliff Lake, New Jersey 07677 Rand Company Limited. - ------------------------------------ ------------------------------------ ------------------------------------ Peter Hong, Director & c/o Ingersoll-Rand Company Vice President and Treasurer, Vice President and 200 Chestnut Ridge Road, Ingersoll-Rand Company Limited Treasurer Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------ Gerald E. Swimmer c/o Ingersoll-Rand Company Vice President, Ingersoll-Rand Director, Vice President 200 Chestnut Ridge Road, Company Limited. Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------
Executive Officers Who Are Not Directors
- ------------------------------------ ------------------------------------ ------------------------------------ Name and Title Business Address Present Principal Occupation - ------------------------------------ ------------------------------------ ------------------------------------ Patricia Nachtigal c/o Ingersoll-Rand Company Senior Vice President and Director, Senior Vice President 200 Chestnut Ridge Road, General Counsel, Ingersoll- and General Counsel Woodcliff Lake, New Jersey 07677 Rand Company Limited. - ------------------------------------ ------------------------------------ ------------------------------------
------------------- Page 15 of 17 Pages ------------------- DIRECTORS AND EXECUTIVE OFFICERS OF INGERSOLL-RAND COMPANY LIMITED The following table sets forth the name, business address and present principal occupation or employment of each director and executive officer of Ingersoll-Rand Company Limited. Each such person is a U.S. citizen, except Messr. Godsoe, who is a citizen of Canada. Board of Directors
- ------------------------------------ ------------------------------------ ------------------------------------ Name and Title Business Address Present Principal Occupation - ------------------------------------ ------------------------------------ ------------------------------------ Herbert L. Henkel c/o Ingersoll-Rand Company Chairman, President and Chief Chairman, President and 200 Chestnut Ridge Road, Executive Officer. Chief Executive Officer Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------ Patricia Nachtigal c/o Ingersoll-Rand Company Senior Vice President and General Director, Senior Vice 200 Chestnut Ridge Road, Counsel. President and General Counsel Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------ Ann C. Berzin c/o Ingersoll-Rand Company Former Chairman and Chief Executive Director 200 Chestnut Ridge Road, Officer of Financial Guaranty Woodcliff Lake, New Jersey 07677 Insurance Company, a subsidiary of General Electric Capital Corporation. - ------------------------------------ ------------------------------------ ------------------------------------ George W. Buckley c/o Ingersoll-Rand Company Chairman and Chief Executive Director 200 Chestnut Ridge Road, Officer of Brunswick Corporation. Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------ Peter C. Godsoe c/o Ingersoll-Rand Company Chairman of the Board and Chief Director 200 Chestnut Ridge Road, Executive Officer of the Bank of Woodcliff Lake, New Jersey 07677 Nova Scotia. - ------------------------------------ ------------------------------------ ------------------------------------ Constance Horner c/o Ingersoll-Rand Company Guest Scholar at the Brookings Director 200 Chestnut Ridge Road, Institution. Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------ H. William Lichtenberger c/o Ingersoll-Rand Company Retired Chairman, President and Director 200 Chestnut Ridge Road, Chief Executive Officer of Woodcliff Lake, New Jersey 07677 Praxair, Inc. - ------------------------------------ ------------------------------------ ------------------------------------ Theodore E. Martin c/o Ingersoll-Rand Company Retired President and Chief Director 200 Chestnut Ridge Road, Executive Officer of Barnes Woodcliff Lake, New Jersey 07677 Group, Inc. - ------------------------------------ ------------------------------------ ------------------------------------ Orin R. Smith c/o Ingersoll-Rand Company Retired Chairman and Chief Director 200 Chestnut Ridge Road, Executive Officer of Engelhard - ------------------------------------ ------------------------------------ ------------------------------------ ------------------- Page 16 of 17 Pages ------------------- - ------------------------------------ ------------------------------------ ------------------------------------ Woodcliff Lake, New Jersey 07677 Corporation. - ------------------------------------ ------------------------------------ ------------------------------------ Richard J. Swift c/o Ingersoll-Rand Company Chairman of Financial Accounting Director 200 Chestnut Ridge Road, Standards Advisory Council. Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------ Tony L. White c/o Ingersoll-Rand Company Chairman, President and Chief Director 200 Chestnut Ridge Road, Executive Officer of Applera Woodcliff Lake, New Jersey 07677 Corporation. - ------------------------------------ ------------------------------------ ------------------------------------
Executive Officers Who Are Not Directors
- ------------------------------------ ------------------------------------ ------------------------------------ Name and Title Business Address Present Principal Occupation - ------------------------------------ ------------------------------------ ------------------------------------ Gordon A. Mapp, Senior Vice c/o Ingersoll-Rand Company Senior Vice President, Sector President 200 Chestnut Ridge Road, President, Climate Control. Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------ Timothy R. McLevish, Senior c/o Ingersoll-Rand Company Senior Vice President and Vice President and Chief 200 Chestnut Ridge Road, Chief Financial Officer. Financial Officer Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------ Donald H. Rice, Senior Vice c/o Ingersoll-Rand Company Senior Vice President, Global President 200 Chestnut Ridge Road, Business Services and Human Woodcliff Lake, New Jersey 07677 Resources. - ------------------------------------ ------------------------------------ ------------------------------------ Randy P. Smith, Senior Vice c/o Ingersoll-Rand Company Senior Vice President and President 200 Chestnut Ridge Road, Sector President, Security and Woodcliff Lake, New Jersey 07677 Safety. - ------------------------------------ ------------------------------------ ------------------------------------ John E. Turpin, Senior Vice c/o Ingersoll-Rand Company Senior Vice President and President 200 Chestnut Ridge Road, Sector President, Industrial WoodcliffLake, New Jersey 07677 Solutions. - ------------------------------------ ------------------------------------ ------------------------------------ Christopher P. Vasiloff, Senior c/o Ingersoll-Rand Company Senior Vice President and Vice President 200 Chestnut Ridge Road, Sector President, Infrastructure Woodcliff Lake, New Jersey 07677 Sector. - ------------------------------------ ------------------------------------ ------------------------------------ Richard W. Randall, Senior c/o Ingersoll-Rand Company Vice President and Controller. Vice President and Controller 200 Chestnut Ridge Road, Woodcliff Lake, New Jersey 07677 - ------------------------------------ ------------------------------------ ------------------------------------
------------------- Page 17 of 17 Pages ------------------- EXHIBIT INDEX Exhibit Description - ------- ----------- 1. Stock and Asset Purchase Agreement, dated as of October 16, 2002, among Ingersoll-Rand Company Limited, on behalf of itself and the other sellers named therein, and the Timken Company, on behalf of itself and the other buyers names therein, incorporated by reference to Exhibit 2.1 on the Form 8-K filed by Ingersoll-Rand Company Limited on October 17, 2002. 2. Amendment to Stock and Asset Purchase Agreement dated as of February 18, 2003, amending the Stock Purchase Agreement, dated as of October 16, 2002, between Ingersoll-Rand Company Limited, on behalf of itself and certain of its subsidiaries and The Timken Company, on behalf of itself and certain of its subsidiaries. 3. Standstill and Voting Agreement, dated as of February 18, 2003, between The Timken Company, Ingersoll-Rand Company and Ingersoll-Rand Company Limited. 4. Registration Rights Agreement, dated as of February 18, 2003, between The Timken Company and Ingersoll-Rand Company. 5. Joint Filing Agreement relating to the filing of this Schedule 13D, as required by Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended. EX-2 3 amendstockpurchaseagmt.txt AMENDMENT TO PURCHASE AGREEMENT AMENDMENT TO STOCK AND ASSET PURCHASE AGREEMENT This AMENDMENT TO STOCK AND ASSET PURCHASE AGREEMENT, dated as of February 18, 2003 (this "Amendment"), by and between Ingersoll-Rand Company Limited, a company organized under the laws of Bermuda ("IR"), on behalf of itself and the other Sellers named in the Purchase Agreement (as defined below), and The Timken Company, an Ohio corporation ("Timken"), on behalf of itself and the other Buyers named in the Purchase Agreement. RECITALS A. The Sellers and the Buyers are parties to that certain Stock and Asset Purchase Agreement, dated as of October 16, 2002 (as amended, modified or supplemented from time to time, the "Purchase Agreement"). B. By various letters set forth in Appendix N hereto, each of IR and Timken, on behalf of itself and the other Sellers and Buyers, respectively, agreed to amend certain provisions of and Schedules to the Purchase Agreement. C. Section 10.5 of the Purchase Agreement provides that the Purchase Agreement may not be amended, modified or supplemented except upon the execution and delivery of a written agreement executed by the parties thereto and specifically referencing the Purchase Agreement. D. The Sellers and the Buyers have agreed to further amend and restate certain provisions of and Schedules to the Purchase Agreement, as provided in this Amendment. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements hereinafter set forth, the parties hereto hereby agree as follows: ARTICLE I DEFINITIONS 1.1 Certain Definitions. Unless otherwise defined in this Amendment, all capitalized terms used in this Amendment, including in the introductory paragraph and the recitals hereto, have the respective meanings given to such terms in the Purchase Agreement. ARTICLE II AMENDMENTS TO THE PURCHASE AGREEMENT 2.1 Definitions. Section 1.1 of the Purchase Agreement is hereby amended as follows: (a) the defined term "Closing Net Working Capital Statement" is hereby amended by deleting the phrase "12:01 A.M. (local time) on the Closing Date" and inserting in lieu thereof the phrase "the effective time of the Closing as set forth in Section 2.4(a)"; (b) the following defined terms are inserted in their proper alphabetical order: (i) "'IR Canada' shall mean Ingersoll-Rand Canada, Inc., a company organized under the laws of Canada and an indirect, wholly owned subsidiary of IR."; (ii) "'Kilian Canada ULC' shall mean the Nova Scotia unlimited liability company formed pursuant to the Restructuring to receive the Separate Assets of IR Canada attributable to IR Canada's Kilian Division."; (iii) "'Specified Entities' shall mean, collectively, Ingersoll-Rand South East Asia (Pte) Ltd., Ingersoll-Rand Company (Chile) Y Cia Ltda., Ingersoll-Rand (China) Investment Co Ltd, Ingersoll-Rand Korea Limited, Ingersoll-Rand (India) Limited, and Ingersoll-Rand Japan Ltd., each an IR Affiliate."; and (iv) "'Torrington Canada ULC' shall mean the Nova Scotia unlimited liability company formed pursuant to the Restructuring to receive the Separate Assets of IR Canada other than the Separate Assets attributable to IR Canada's Kilian Division."; and (c) the defined term "NSULC" is hereby deleted in its entirety. 2.2 Section 2.3(c). The reference to "NSULC" in Section 2.3(c) of the Purchase Agreement is hereby deleted and the phrase "Kilian Canada ULC, Torrington Canada ULC," is inserted in lieu thereof. 2.3 Section 2.4(a). Section 2.4(a) of the Purchase Agreement is hereby amended and restated to read as follows: "2.4 The Closing. (a) Unless this Agreement shall have been terminated pursuant to Article VIII, subject to the satisfaction or waiver of the conditions set forth in Articles VI and VII, the closing (the "Closing") of the transactions contemplated by this Agreement shall take place at the offices of Jones Day, 222 East 41st Street, New York, New York 10017 on February 18, 2003 at 10:00 a.m., New York City time, or at such other place and time as may be agreed upon by the Sellers and the Buyers (the "Closing Date"). For the avoidance of doubt, the representations and warranties of the Sellers and the Buyers, respectively, shall be made again as of February 18, 2003, in the manner set forth in Sections 6.1 and 7.1, respectively, and the certificates to be delivered by the Sellers and the Buyers pursuant to Sections 6.3 and 7.3, respectively, shall each be dated February 18, 2003. For all other purposes of this Agreement and notwithstanding anything to the contrary in any agreement, document or other instrument of sale, conveyance, transfer or assignment constituting a Transaction -2- Agreement, the Closing shall be deemed to be effective as of 12:01 a.m. (local time) on February 16, 2003. In addition, notwithstanding anything to the contrary in any agreement, document or other instrument of sale, conveyance, transfer or assignment constituting a Transaction Agreement, the relevant jurisdiction for the resolution of disputes of each such agreement, document or other instrument shall be as set forth in Section 10.16 of the Purchase Agreement." 2.4 Section 2.6(a). The fourth sentence of Section 2.6(a) of the Purchase Agreement is hereby amended by deleting the phrase "12:01 A.M. (local time) on the Closing Date," and inserting in lieu thereof the phrase "the effective time of the Closing as set forth in Section 2.4(a)." 2.5 Section 2.6(i). Each reference to "NSULC" in Section 2.6(i) of the Purchase Agreement is hereby deleted and the phrase "Kilian Canada ULC and Torrington Canada ULC" is inserted in lieu thereof. 2.6 Sections 5.28, 5.29 and 5.30. New Sections 5.28, 5.29 and 5.30 are added at the end of Article V of the Purchase Agreement to read as follows: "Section 5.28. Certain Asset and Employee Transfers. "(a) Contemporaneous with the Closing and subject to the terms and conditions set forth in the Purchase Agreement, IR will cause each of the Specified Entities to sell, convey, assign and transfer, and Timken shall cause such Timken Affiliates as Timken shall have designated, to purchase and acquire for $1.00, any and all assets used or principally held for use in the Business by such Specified Entities, pursuant to separate invoices prepared by Timken in accordance with the Laws of the relevant jurisdiction in which such assets are located. "(b) On or prior to the Closing Date, Timken will deliver to those employees whose names are set forth on Schedule 5.28 (collectively, the "Specified Employees"), written offers of ongoing employment with Timken or such other Timken Affiliates as Timken shall designate. The parties agree that such Specified Employees shall be considered Company Employees of the Asset Sellers, and that the rights and obligations under Section 5.8 shall be deemed to apply in all respects to each Specified Entity that is not a Seller and each such Timken Affiliate that is not a Buyer, as if each such Specified Entity and Timken Affiliate were a party to this Agreement, and that each of IR and Timken shall have all rights under this Agreement, including under Article IX, to enforce the provisions of this Section 5.28 on behalf of any such Specified Entity or Timken Affiliate, as applicable. "(c) The Section 2.3(c)(i) Allocation shall not be revised to reflect the transfers referenced in this Section 5.28. "Section 5.29. Fair Market Value of Separate Assets. The parties agree that for all Tax purposes, the respective fair market values as of the Closing of the -3- separate items of property constituting the Separate Assets shall be equal to the net book values of such items consistent with Schedule 2.3. IR agrees to furnish, or to cause to be furnished, to Timken a copy of any Tax filing, including filing for VAT, that shall be due after the Closing in respect of such items, not less than 15 days prior to such filing or a reasonably shorter period if such information is not available. "5.30 Intercompany Receivables and Payables in Respect of Separate Assets. IR confirms and agrees that, in connection with the sale of the Separate Assets, no intercompany accounts receivable or intercompany accounts payable existing or arising prior to or on the Closing Date, among IR or any of its Affiliates (other than the Sold Companies, the Subsidiaries or the Venture Entities) and any Asset Seller, shall be transferred, sold or conveyed to any Buyer." 2.7 Schedules A and B. Schedules A and B to the Purchase Agreement are hereby amended and restated in their entirety and, as so amended and restated, are set forth in Appendix A hereto. 2.8 Schedule D. Schedule D to the Purchase Agreement is hereby amended and restated in its entirety and, as so amended and restated, is set forth in Appendix B hereto. 2.9 Schedule E. Schedule E to the Purchase Agreement is hereby amended and restated in its entirety and, as so amended and restated, is set forth in Appendix C hereto. 2.10 Schedule F. Schedule F to the Purchase Agreement is hereby amended and restated in its entirety and, as so amended and restated, is set forth in Appendix D hereto. 2.11 Schedule 1.1(c). Schedule 1.1(c) to the Purchase Agreement is hereby amended and restated in its entirety and, as so amended and restated, is set forth in Appendix E hereto. 2.12 Schedule 2.3. Schedule 2.3 to the Purchase Agreement is hereby amended and restated in its entirety and, as so amended and restated, is set forth in Appendix F hereto. 2.13 Schedule 3.3. Schedule 3.3 to the Purchase Agreement is hereby amended and restated in its entirety and, as so amended and restated, is set forth in Appendix G hereto. 2.14 Schedule 3.4(a). Schedule 3.4(a) to the Purchase Agreement is hereby amended and restated in its entirety and, as so amended and restated, is set forth in Appendix H hereto. 2.15 Schedule 3.9. In accordance with Section 5.27 of the Purchase Agreement, Schedule 3.9 to the Purchase Agreement is hereby amended and restated in its entirety and, as so amended and restated, is set forth in Appendix I hereto. -4- 2.16 Schedule 3.16. In accordance with Section 5.27 of the Purchase Agreement, Schedule 3.16 to the Purchase Agreement is hereby amended and restated in its entirety and, as so amended and restated, is set forth in Appendix J hereto. 2.17 Schedules 3.19(a) and 3.19(b). Schedules 3.19(a) and 3.19(b) to the Purchase Agreement are hereby amended and restated in their entirety and, as so amended and restated, are set forth in Appendix K hereto. 2.18 Schedule 5.25. Schedule 5.25 to the Purchase Agreement is hereby amended and restated in its entirety and, as so amended and restated, is set forth in Appendix L hereto. 2.19 Schedule 5.28. A new Schedule 5.28 to the Purchase Agreement is hereby added to the Purchase Agreement and is set forth in Appendix M hereto. ARTICLE III MISCELLANEOUS 3.1 Effect of Amendment. Each of IR and Timken, on behalf of itself and the other Sellers and Buyers, respectively, hereby acknowledges the prior execution and delivery of the letters attached hereto in Appendix N, each of which is hereby incorporated into and made a part of this Agreement. This Amendment shall supersede any such letter if, and only to the extent that, the subject matter of such letter is the specific subject matter of an amendment or restatement contained in this Amendment. Except as expressly amended, modified or supplemented hereby, the Purchase Agreement is hereby reaffirmed and remains in full force and effect. This Amendment shall be effective as of the effective time of the Closing under the Purchase Agreement, as amended by this Amendment. On and after the date hereof, each reference in the Purchase Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of similar import referring to the Purchase Agreement, and each reference in the Transaction Documents, or any of them, to the "Purchase Agreement," "thereunder," "thereof" or words of similar import referring to the Purchase Agreement shall mean, and shall be a reference to, the Purchase Agreement as amended by this Amendment. 3.2 Amendment. This Amendment may not be amended, modified or supplemented except upon the execution and delivery of a written agreement executed by the parties hereto and specifically referencing this Amendment. 3.3 Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be considered one and the same instrument and each of which shall be deemed an original. 3.4 Headings. The headings contained in this Amendment are for reference only and shall not affect in any way the meaning or interpretation of this Amendment. 3.5 Severability. Any provision of this Amendment which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining -5- provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction. 3.6 Governing Law. This Amendment shall be construed under and governed by the Laws of the State of New York applicable to contracts made and to be performed in that State. [Signatures on following page] -6- IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written. INGERSOLL-RAND COMPANY LIMITED By: /s/ Ronald G. Heller _____________________________________ Name: Ronald G. Heller Title: Vice President THE TIMKEN COMPANY By: /s/ William R. Burkhart _____________________________________ Name: William R. Burkhart Title: Senior Vice President and General Counsel EX-3 4 stanstillvotingagr.txt STANDSTILL AND VOTING AGREEMENT STANDSTILL AND VOTING AGREEMENT STANDSTILL AND VOTING AGREEMENT, dated as of February 18, 2003 (this "Agreement"), by and among The Timken Company, an Ohio corporation (the "Company"), Ingersoll-Rand-Company, a New Jersey corporation (the "Stockholder"), and Ingersoll-Rand Company Limited, a company organized under the laws of Bermuda and the indirect sole stockholder of the Stockholder (the "Parent"). RECITALS A. The Parent, certain other sellers (the Parent and such sellers, the "Sellers") and the Company are party to that certain Stock and Asset Purchase Agreement, dated as of October 16, 2002 (the "Purchase Agreement"). The execution of this Agreement is a condition to the Closing (as defined in the Purchase Agreement). B. In partial consideration for the sale of the Business by the Sellers to the Company, the Company will issue shares of common stock, without par value, of the Company (the "Common Shares") to the Stockholder. C. In consideration for its receipt of the Common Shares, the Stockholder and the Parent desire to abide by the standstill, voting and other agreements set forth herein. D. Capitalized terms used in this Agreement but not defined herein have the respective meanings set forth in the Purchase Agreement. NOW, THEREFORE, in consideration of the agreements, rights, obligations and covenants contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Company, the Stockholder and the Parent hereby agree as follows: 1. Definitions. 1.1 Certain Definitions. In addition to the other terms defined in this Agreement, for purposes of this Agreement, the following terms have the following meanings: (a) A Person is deemed to be an "Affiliate" of another Person in accordance with the term "affiliate" as defined in Rule-12b-2 under the Exchange Act. (b) A Person is deemed a "Beneficial Owner" of or to "Beneficially Own" any Securities in accordance with the term "beneficial ownership" as defined in Rule 13d-3 under the Exchange Act as in effect on the date of this Agreement, and also includes Common Shares that such Person or any Affiliate of such Person has the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that the Parent and the Stockholder shall not be deemed to Beneficially Own Securities referred to in the second sentence of Section 3.1(a). (c) "Company Common Stock" means the common stock, without par value, of the Company. (d) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, or any similar federal statute then in effect, and a reference to a particular section thereof shall be deemed to include a reference to the comparable section, if any, of any such similar federal statute. (e) "Group" means two or more persons acquiring, holding, voting or disposing of securities which would constitute a "person" within the meaning of section 13(d)(3) of the Exchange Act. (f) "Parent" shall be deemed to include all Affiliates of the Parent, excluding the Stockholder. (g) "Specified Stockholders" means the current management and board of directors of the Company, John M. Timken, Jr., Ward J. Timken, W.R. Timken, Jr., the Timken Foundation of Canton, Ohio and any person deemed to be part of a Group with any of the above. 2. Term. Except as otherwise set forth herein, the respective covenants and agreements of the Stockholder, the Company and the Parent contained in this Agreement shall continue in full force and effect until the first date on which the Stockholder and the Parent in the aggregate cease to Beneficially Own at least 5% of the then outstanding Company Common Stock. 3. Standstill and Voting Arrangements. 3.1 Standstill Arrangements. Until the third anniversary after the first date on which the Stockholder and the Parent in the aggregate cease to Beneficially Own at least 4,272,890 shares of Company Common Stock: (a) Acquisition of Securities. Neither the Parent nor the Stockholder shall, directly or indirectly, acquire (i) any Company Common Stock, (ii) any other securities of the Company entitled, or that may be entitled, to vote generally for the election of directors of the Company or (iii) any other securities, warrants or options or rights of any nature that are convertible into, exchangeable or exercisable for, or otherwise give the holder thereof any rights in respect of, any securities described in clause (i) or (ii) (such securities referred to in clauses (i) and (ii), collectively, "Securities," and all Securities Beneficially Owned by the Parent or the Stockholder being referred to herein as "Restricted Securities"). Notwithstanding the foregoing, this Section shall not prohibit or apply to (w) the receipt of Securities pursuant to stock dividends, stock reclassifications or other distributions or offerings made available by the Company to, and, if applicable, exercisable on a pro rata basis by, the holders of Company Common Stock generally; (x) purchases of Securities solely for pension, employee benefit or 2 compensation plans of the Parent or the Stockholder in the ordinary course of business by an unaffiliated agent on behalf of the Parent or the Stockholder; (y) investments by the Parent or the Stockholder in the ordinary course of business held in mutual funds or index funds who or which own or trade the Securities; and (z) Securities owned by a company or other business entity acquired by the Parent or the Stockholder that are so owned by such company or business entity on the closing date of such acquisition; provided that this clause (z) shall in no way limit the obligations of the Parent and the Stockholder pursuant to any other provision of this Agreement (including Section 3.1(d)). (b) Parent/Stockholder Proposals. Without the express prior written approval of the Company, neither Parent nor the Stockholder shall, directly or indirectly, alone or in concert with others, effect, offer or propose (whether publicly or otherwise) any merger, consolidation, amalgamation, share exchange, recapitalization, restructuring or other business combination involving the Company or any purchase of all or a substantial portion of the assets of the Company or all or a substantial portion of its business. (c) Voting Trust or Arrangement. Neither the Parent nor the Stockholder shall deposit any Restricted Securities in a voting trust or, except as otherwise provided in this Agreement, subject any Restricted Securities to any arrangement or agreement with respect to the voting of such Restricted Securities. (d) Group Participation. Without the express prior written approval of the Company, neither the Parent nor the Stockholder shall join or in any other way participate in a partnership, limited partnership, syndicate or other Group or otherwise act in concert with any Person, for the purpose of acquiring, holding, other than as permitted by Section 3.2 or 3.3 hereof, voting or disposing of Securities. (e) Solicitation of Offers. Neither the Parent nor the Stockholder shall, and shall use its reasonable best efforts to cause its directors, officers, employees, agents (including investment bankers), partners and Affiliates not to, directly or indirectly, engage in discussions or negotiations with, provide any information to, induce or attempt to induce or give encouragement to, any Person (other than to the Company's chief executive officer), in furtherance of any change in control of the Company (whether pursuant to a tender or exchange offer, a stock or asset sale or a merger, consolidation, amalgamation, plan of arrangement or any other form of transaction) or for any sale of all or substantially all of the assets of the Company, or any other transaction that would be inconsistent with or frustrate the purpose of this Agreement; provided, however, that nothing in this clause (e) shall, or shall be construed, directly or indirectly, to limit any rights of the Parent or the Stockholder to offer, sell or otherwise dispose of Restricted Securities as permitted hereunder or to otherwise exercise any rights pursuant to Section 3.2 or 3.3. (f) Control. Neither the Parent nor the Stockholder shall, by way of any public communication or any communication with any Person other than the Company or its directors, officers, employees, agents or representatives (collectively, "Company Representatives"), seek to influence, advise, change or control the management or affairs of the Company, it being expressly understood that nothing contained in this paragraph shall impair the 3 ability of the Parent or the Stockholder to (i) engage in confidential communications with Company Representatives or (ii) exercise any rights of Parent and the Stockholder pursuant to Section 3.2. (g) Amendment and Waiver. Neither the Parent nor the Stockholder shall request the Company (or any of its officers, Directors, representatives, associates, attorneys, advisors, agents, or Affiliates) to waive, amend or modify in any material respect any restrictions contained in Section 3.1 or 3.2 (or to waive, amend or modify this clause (g)). 3.2 Voting Arrangements. (a) Until such time as the Stockholder and the Parent in the aggregate first cease to Beneficially Own at least 4,272,890 shares of Company Common Stock, each of the Parent and the Stockholder shall, on all matters to be voted on by the holders of Securities, vote its shares of Restricted Securities in proportion to the votes cast by the other holders of Securities; provided, that each of the Parent and the Stockholder shall be entitled at all times to vote in accordance with the recommendation of the board of directors of the Company. Notwithstanding the foregoing, each of the Parent and the Stockholder may cast any or all of its votes in its sole discretion with respect to the following matters: (i) any Rule 13e-3 transaction (as defined in Rule 13e-3 of the Exchange Act); (ii) any transaction or series of transactions submitted to a vote of the stockholders of the Company pursuant to which any of the Specified Stockholders (A) seeks to increase its Beneficial Ownership of Securities, (B) is otherwise a party to such transaction or series of transactions or (C) would obtain benefits (other than compensation benefits in respect of its employment or service as a director), not shared pro rata by the remainder of the holders of Company Common Stock; and (iii) any other matter (other than a matter proposed by the Stockholder or the Parent) submitted to the vote of the holders of Securities pursuant to which Restricted Securities Beneficially Owned by the Stockholder or its Affiliates will not be treated identically with all other Securities. (b) Until such time as the Stockholder and the Parent in the aggregate cease to Beneficially Own at least 4,272,890 shares of Company Common Stock, neither the Parent nor the Stockholder shall, in connection with any matter as to which the proportional voting commitment of Section 3.2(a) is then applicable to the Parent and the Stockholder, (i)make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote (as such terms are used in the proxy rules under the Exchange Act) Securities with respect to such matter or (ii) seek to advise, encourage or influence any person or entity with respect to the voting of any Securities with respect to such matter. (c) Quorum. Until such time as the Stockholder and the Parent in the aggregate cease to Beneficially Own at least 4,272,890 shares of Company Common Stock, the Parent and the Stockholder shall take all action within their respective control to be present, in person or by proxy, at any meeting of shareholders of the Company so that all Restricted 4 Securities may be counted for the purpose of determining the existence of a quorum at such meeting. (d) Written Consents. Neither the Parent nor the Stockholder shall, without the prior written approval of the Company, execute any written consent in lieu of a meeting of holders of Securities providing for a vote of the Restricted Securities that is inconsistent with the voting arrangements set forth in Section 3.2(a). (e) Stockholder Meetings. Neither the Parent nor the Stockholder shall, without the prior written approval of the Company, call or seek to have called, or assist, directly or indirectly, any other Person in calling or seeking to call, any special meeting of the shareholders of the Company for any reason. (f) Stockholder Lists. Neither the Parent nor the Stockholder shall, without the prior written approval of the Company, seek, request to obtain, or assist, directly or indirectly, any other Person in seeking, requesting or obtaining, any list of securityholders of the Company in connection with any matter as to which the proportional voting requirements of Section 3.2(a) applies. 3.3 Transfers. (a) During the six-month period following the Closing Date, neither the Stockholder nor the Parent shall, directly or indirectly, offer, sell, pledge, lend, transfer, hypothecate or otherwise dispose of (each such transaction, a "Transfer") any Restricted Securities except (i) to any Affiliate of the Stockholder or the Parent, respectively, that agrees to be bound by the provisions of this Agreement, (ii) in connection with the granting of any security interest, pledge, hypothecation, option, lien or other encumbrance in connection with a bona fide transaction with a financial institution, provided that such financial institution agrees that, if and to the extent it obtains ownership of such Registrable Securities, it shall be bound by the restrictions of this Agreement as if it were the Stockholder hereunder, and any Restricted Securities so Transferred shall be aggregated with any Restricted Securities Beneficially Owned by the Stockholder and the Parent for purposes of this Agreement, (iii) in accordance with Section 3 of the Registration Rights Agreement or (iv) pursuant to a merger, consolidation or other similar transaction involving the Company approved by the stockholders of the Company as to which Parent and the Stockholder are in compliance with the voting requirements set forth in Section 3.2. (b) Without limiting the provisions of Section 3.3(a), until such time as the Stockholder and the Parent in the aggregate cease to Beneficially Own at least 4,272,890 shares of Company Common Stock, neither the Stockholder nor the Parent shall Transfer any Restricted Securities in any transaction or series of related transactions that, to the knowledge of the Parent or the Stockholder (based solely on the public filings of the Company and without further independent inquiry), would result in any Person or Group having, upon consummation of such Transfer, directly or indirectly, Beneficial Ownership of such number of Securities as represents more than 5% of the Company Common Stock then outstanding, unless, in each such case, the transferee shall have executed and delivered a counterpart to this Agreement agreeing to be bound by the terms and conditions hereof in form and substance satisfactory to the Company, provided that such transferee agrees that, if and to the extent it obtains ownership of such 5 Registrable Securities, it shall be bound by the restrictions of this Agreement as if it were the Stockholder hereunder and any Restricted Securities so Transferred shall be aggregated with any Restricted Securities Beneficially Owned by the Stockholder and the Parent for purposes of this Agreement; provided further, that the foregoing restrictions shall not apply to any Transfers (A) pursuant to a registration statement or (B) permitted pursuant to a transaction expressly permitted in Section 3.3(a). (c) The restrictions set forth in this Section 3.3 shall not apply to transfers pursuant to a bona fide third party tender offer or exchange offer which was not induced directly or indirectly by the Stockholder or the Parent and (i) which is recommended by the board of directors of the Company or which the board of directors of the Company has failed to recommend against, (ii) which is approved by the holders of Company Common Stock pursuant to Section 1701.831 of the Ohio Code (or any successor provision) and as to which Parent and the Stockholder are in compliance with the voting requirements set forth in Section 3.2 or (iii) in which the Stockholder or Parent could be disadvantaged, in any material respect, if the Stockholder or Parent failed to tender because the offer is a partial tender offer for less than all of the outstanding Securities or a tender offer for all Securities with no undertaking by the offeror or its Affiliates for a second step or similar "back-end" transaction providing for the same consideration as in the offer. (d) Any attempted Transfer of any Restricted Securities in violation of the provisions of this Section 3.3 shall be null and void and of no force or effect whatsoever. 3.4 Legends and Stop Transfer Orders. (a) The Company shall cause the certificate or other instrument representing Restricted Securities to have the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN COMPLIANCE WITH SUCH ACT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF A STANDSTILL AND VOTING AGREEMENT, DATED AS OF FEBRUARY 18, 2003, A COPY OF WHICH IS ON FILE AT THE OFFICE OF THE SECRETARY OF THE TIMKEN COMPANY. (b) Each of the Parent and the Stockholder agrees to the entry of stop transfer orders with the transfer agent (or agents) and the registrar (or registrars) of the Company against the Transfer of Restricted Securities other than in compliance with the foregoing provisions. 3.5 Reports. The Parent and the Stockholder shall promptly provide to the Company copies of any reports or schedules filed by the Stockholder or the Parent with the Commission pursuant to Regulation 13D-G (or any successor provision) promulgated under the Exchange Act within five Business Days of filing. 6 3.6 Communication. Without in any way waiving their respective legal rights, the Parent, the Stockholder and the Company hereby agree to use commercially reasonable efforts to resolve any dispute that may arise in the future between Parent or Stockholder, on the one hand, and the Company, on the other hand, without public disclosure thereof. 4. Miscellaneous. 4.1 Specific Enforcement. Each of the parties acknowledges and agrees that the Company would be irreparably damaged in the event any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached. It is accordingly agreed that the Company will be entitled to preliminary or permanent injunctive relief to prevent breaches of this Agreement by the Stockholder or any of its Affiliates that become Beneficial Owners of Securities in accordance with this Agreement, without the necessity of proving actual damages or the posting of any bond, and to specifically enforce the terms and provisions of this Agreement in any action instituted in any court of the United States or any state thereof having subject matter jurisdiction, which rights shall be cumulative and in addition to any other remedy to which the Company may be entitled hereunder, at law or in equity. 4.2 Amendment. This Agreement may not be amended, modified or supplemented except upon the execution and delivery of a written agreement executed by the parties hereto and specifically referencing this Agreement. 4.3 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any party hereto without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by, the parties hereto and their respective successors and permitted assigns, and is not intended to confer upon any Person other than the parties hereto and their respective successors and permitted assigns any rights or remedies hereunder. Notwithstanding the foregoing, this Agreement shall not be binding on any transferee of Restricted Securities other than as set forth in Section 3.3. 4.4 Waiver. Any of the terms or conditions of this Agreement which may be lawfully waived may be waived at any time in a writing specifically referencing this Agreement by each party which is entitled to the benefits thereof. Any waiver of any of the provisions of this Agreement by any party hereto shall be binding only if set forth in an instrument in writing signed on behalf of such party and specifically referencing this Agreement. No failure to enforce any provision of this Agreement shall be deemed to or shall constitute a waiver of such provision and no waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver of any other provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver. 4.5 Notices. Any notice, demand, or communication required or permitted to be given by any provision of this Agreement shall be deemed to have been sufficiently given or served for all purposes if (a) personally delivered, (b) sent by a nationally recognized overnight courier service to the recipient at the address below indicated, (c) sent by registered or certified 7 mail, return receipt requested, postage prepaid, or (d) delivered by facsimile with confirmation of receipt: (i) if to the Company to: The Timken Company 1835 Dueber Avenue, S.W. Canton, Ohio 44706 Attention: Senior Vice President and General Counsel (330) 471-3002 (telephone) (330) 471-4041 (telecopier) with a copy to: Jones Day 901 Lakeside Avenue Cleveland, Ohio 44114 Attention: Lyle G. Ganske, Esq. (216) 586-3939 (telephone) (216) 579-0212 (telecopier) (ii) if to the Stockholder or the Parent to: Ingersoll-Rand Company or Ingersoll-Rand Company Limited c/o Ingersoll-Rand-Company 200 Chestnut Ridge-Road Woodcliff Lake, New Jersey 07677 Attention: Senior Vice President and General Counsel (201) 573-3473 (telephone) (201) 573-3448 (telecopier) with a copy to: Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017 Attention: Maripat Alpuche, Esq. (212) 455-3971 (telephone) (212) 455-2502 (telecopier) (iii) or to such other address as any party hereto may, from time to time, designate in a written notice given in like manner. Except as otherwise provided herein, any notice under this Agreement will be deemed to have been given (x) on the date such notice is personally delivered or delivered by facsimile, (y) the next succeeding Business Day after the date such notice is delivered to the overnight courier 8 service if sent by overnight courier, or (z) five Business Days after the date such notice is sent by registered or certified mail; provided, however, that in each case notices received after 4:00 p.m. (local time of the recipient) shall be deemed to have been duly given on the next Business Day. 4.6 Entire Agreement. This Agreement, the Registration Rights Agreement and the Purchase Agreement, constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. 4.7 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall constitute one and the same instrument and each of which shall be deemed an original. 4.8 Headings; References. The headings contained in this Agreement are for reference only and shall not affect in any way the meaning or interpretation of this Agreement. Unless otherwise specified, references to "Articles" and "Sections" are to Articles and Sections of this Agreement. 4.9 Governing Law. This Agreement shall be construed under and governed by the Laws of the State of New York applicable to contracts made and to be performed in that State. 4.10 Consent to Jurisdiction; Waiver of Jury Trial. Each of the parties irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York located in the borough of Manhattan in the City of New York, or if such court does not have jurisdiction, the Supreme Court of the State of New York, New York County, for the purposes of any Proceeding arising out of this Agreement or any transaction contemplated hereby. Each of the parties hereto irrevocably and fully waives the defense of an inconvenient forum to the maintenance of such Proceeding. Each of the parties further agrees that service of any process, summons, notice or document to such party's respective address listed above in one of the manners set forth in Section 4.5 shall be deemed in every respect effective service of process in any such Proceeding, and waives any objection it might otherwise have to service of process under Law. Nothing herein shall affect the right of any Person to serve process in any other manner permitted by Law. Each of the parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any Proceeding arising out of this Agreement or the transactions contemplated hereby in (a) the United States District Court for the Southern District of New York or (b) the Supreme Court of the State of New York, New York County, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding brought in any such court has been brought in an inconvenient forum. The parties hereto hereby irrevocably and unconditionally waive trial by jury in any Proceeding relating to this Agreement or any other agreement entered into in connection therewith and for any counterclaim with respect thereto. 4.11 Severability. Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions 10 hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction. [Remainder of page intentionally blank.] 9 IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Agreement as of the date first above written. THE TIMKEN COMPANY By: /s/ William R. Burkhart _________________________________ Name: William R. Burkhart Title: Senior Vice President and General Counsel INGERSOLL-RAND COMPANY By: /s/ Ronald G. Heller _________________________________ Name: Ronald G. Heller Title: Vice President and Secretary INGERSOLL-RAND COMPANY LIMITED By: /s/ Ronald G. Heller _________________________________ Name: Ronald G. Heller Title: Vice President and Secretary EX-4 5 regrightsagmt.txt REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT, dated as of February 18, 2003 (the "Agreement"), between Ingersoll-Rand Company, a New Jersey corporation (together with its successors and assigns, "IR") and The Timken Company, an Ohio corporation (the "Company"). WHEREAS, pursuant to that certain Stock and Asset Purchase Agreement, dated as of October 16, 2002 (the "Purchase Agreement"), between the Company and Ingersoll-Rand Company Limited, on behalf of itself and the other Sellers party thereto, IR is acquiring shares of Company Common Stock (as defined below). WHEREAS, the Company has agreed to provide certain registration rights to IR with respect to the Registrable Securities (as defined below) upon the terms and subject to the conditions set forth herein. NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows: 1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings (terms used but not defined herein shall have the meanings ascribed to them in the Purchase Agreement): "Affiliate" shall mean, as to any Person, any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person. "Business Day" shall mean any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed in The City of New York. "Closing" shall have the meaning set forth in the Purchase Agreement. "Closing Date" shall have the meaning set forth in the Purchase Agreement. "Company Common Stock" shall mean the common stock, without par value, of the Company. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, or any similar federal statute then in effect, and a reference to a particular section thereof shall be deemed to include a reference to the comparable section, if any, of any such similar federal statute. "Governmental Entity" shall mean any court, department, body, board, bureau, administrative agency or commission or other governmental authority or instrumentality. "Holder" shall mean IR and any Permitted Transferee of Registrable Securities. -1- "Permitted Transferee" shall mean any holder of Registrable Securities, other than any such holder that receives such Registrable Securities in violation of the transfer restrictions set forth in Section 3.3 of the Standstill and Voting Agreement. "Person" shall mean an individual, corporation, limited liability company, association, partnership, group (as defined in Section 13(d)(3) of the Exchange Act), trust, joint venture, business trust or unincorporated organization, or a government or any agency or political subdivision thereof or any other entity of any nature whatsoever. "Registrable Securities" shall mean (i) the shares of Company Common Stock issued pursuant to Section 2.3 of the Purchase Agreement, (ii) any securities issued upon the transfer of or in substitution for any such shares of Company Common Stock and (iii) any securities issued or issuable with respect to any such shares of Company Common Stock by way of a stock dividend or stock split, or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise. As to any particular Registrable Securities, once issued, such Registrable Securities shall cease to be Registrable Securities when (w) a registration statement with respect to the sale by the Holders of such securities has become effective under the Securities Act and such securities have been disposed of in accordance with such registration statement, (x) such securities have been sold under circumstances in which all of the applicable conditions to Rule 144 (or any successor provision) under the Securities Act are met, or (y) such securities have ceased to be outstanding. "Registration Expenses" shall mean all expenses incident to the Company's performance of or compliance with its obligations under this Agreement, including, without limitation, all SEC and National Association of Securities Dealers, Inc. (the "NASD") registration and filing fees and expenses; fees and expenses of compliance with securities or blue sky laws (including, without limitation, reasonable fees and disbursements of counsel for any underwriters in connection with blue sky qualifications of the Registrable Securities); printing expenses; messenger, telephone and delivery expenses of the Company; the fees and expenses incurred in connection with the listing of the securities to be registered on any national securities exchange or automated quotation system; fees and disbursements of counsel for the Company and of all independent certified public accountants (including the expenses of any annual audit, special audit and "cold comfort" letters required by or incident to such performance and compliance); reasonable fees and disbursements of underwriters (including, without limitation, all reasonable fees and expenses of any "qualified independent underwriter" required by the rules of the NASD) customarily paid by issuers of securities; the expenses customarily borne by the issuers of securities in a "road show" presentation to potential investors; the reasonable fees and expenses of any special experts retained by the Company in connection with such registration; and the fees and expenses of any other persons retained by the Company; provided, that Registration Expenses shall not include any underwriting discounts or commissions or transfer taxes, if any, attributable to the sale of Registrable Securities, each of which shall be paid or borne by the selling Holders. "SEC" shall mean the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act or the Exchange Act. -2- "Securities Act" shall mean the Securities Act of 1933, as amended, or any similar federal statute then in effect, and a reference to a particular section thereof shall be deemed to include a reference to the comparable section, if any, of any such similar federal statute. 2. Shelf Registration. (a) (i) The Company shall prepare and file or cause to be prepared and filed with the SEC as soon as practicable after the Closing Date a registration statement for an offering to be made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time by the Holders of all of the Registrable Securities (the "Shelf Registration Statement"). The Shelf Registration Statement shall permit resales of Registrable Securities by the Holders in the manner or manners designated by them (including, without limitation, one or more underwritten offerings, subject to Section 2(c) hereof, and including any offering or distribution of Registrable Securities pursuant to the terms of any convertible or other security of any Holder or IR, including, without limitation, any DECs or other similar securities (the "Related Securities")). The Company shall not permit any securities other than Registrable Securities or Company Common Stock to be sold for its own account to be included in the Shelf Registration Statement. The Company shall use its reasonable best efforts to cause the Shelf Registration Statement to be declared effective under the Securities Act as soon as practicable after the Closing Date. The Company shall use its reasonable best efforts to cause the Shelf Registration Statement to remain continuously effective under the Securities Act for a period ending on the earliest of (i) the date on which all Registrable Securities which have not theretofore been sold to the public pursuant to the Shelf Registration Statement could be sold to the public pursuant to paragraph (k) of Rule 144 under the Securities Act, (ii) the date on which there cease to be any Registrable Securities outstanding and (iii) the date when all the Registrable Securities have been sold to the public pursuant to such registration statement in accordance with the intended method of distribution thereof. Subject to Section 2(c), if one or more Holders proposes to sell Registrable Securities in an underwritten offering pursuant to the Shelf Registration Statement, such Holder or Holders may request the Company in writing to effect such underwritten offering by supplement or amendment to the Shelf Registration Statement, stating the number of Registrable Securities proposed to be sold, and the Company shall effect such underwritten offering subject to the terms of this Agreement. The Company will pay all Registration Expenses in connection with any registration pursuant to this Section 2. (ii) Notwithstanding anything in this Section 2(a) to the contrary, the Company may take action that would result in any Holder of Registrable Securities being unable to offer and sell Registrable Securities under a Shelf Registration Statement that has been filed pursuant to this Section 2(a) if (x) the board of directors of the Company determines in good faith after consultation with counsel that such action is required by applicable law, (y) the filing or use of the Shelf Registration Statement may require the Company to disclose material information, and the board of directors of the Company has determined, in the good faith exercise of its reasonable business judgment, that such disclosure is not in the best interests of the Company, or (z) the Company is contemplating or engaged in an underwritten public offering of Company Common Stock for its own account (other than an offering pursuant to Form S-8, S-4 or any successor or similar form) and the managing underwriter has advised the Company that such offers and sales by the Holders will adversely affect such public offering; provided that in no event may the Company exercise the right to prevent a Holder from offering -3- or selling Registrable Securities by use of the Shelf Registration Statement (including pursuant to an underwritten offering thereunder) pursuant to this clause (z) within 365 days after the expiration of the restricted periods set forth in Section 4 hereof applicable to the Company and the Holders following the closing of any registered public offering by the Company of Company Common Stock (or securities convertible into or exercisable for Company Common Stock) after the Closing Date, other than a registration on Form S-8, S-4 or any successor or similar forms. Each period referred to above during which the use of the Shelf Registration Statement is suspended in accordance with this clause (ii) shall be referred to herein as a "Deferral Period". Notwithstanding the foregoing, in no event will a Deferral Period exceed 45 days. In no event shall the Company be entitled to declare more than two Deferral Periods in any 365-day period. The Company shall promptly give the Holders written notice of a determination to commence a Deferral Period, which notice shall contain a general statement of the reasons for, and the anticipated length of, such Deferral Period, and shall notify the Holders upon the termination of each Deferral Period. (b) Demand Registration. If the book-runner(s) for any underwritten offering of Related Securities pursuant to this Section 2 advises the Company that it is of material importance to the success of the proposed offering that either (i) the offering be effected pursuant to a registration statement other than a Shelf Registration Statement or (ii) information be included in the Shelf Registration Statement that is not required by Form S-3, then the Company shall file a registration statement on such other form, or shall include such other information in the Shelf Registration Statement, as the case may be, as the book-runner(s) for such underwritten offering shall so request. All references in this Agreement to a "Shelf Registration Statement" shall also be deemed to refer to any other registration statement filed in accordance with this Section 2(b). (c) Limitations and other Provisions Concerning Underwritten Offerings. (i) Notwithstanding anything in this Section 2 to the contrary: (A) in no event will the Holders be entitled to request the Company to effect an underwritten offering of Registrable Securities pursuant to the Shelf Registration Statement unless no less than 25% of the aggregate number of Registrable Securities originally held by IR (or, if less than such number of Registrable Securities are then Registrable Securities, all of the remaining Registrable Securities) are proposed to be sold pursuant to such underwritten offering, and (B) in no event will the Holders be entitled to request the Company to effect more than an aggregate of two underwritten offerings pursuant to the Shelf Registration Statement, and (ii) an underwritten offering pursuant to this Section 2 shall not be deemed to have been effected unless the Shelf Registration Statement has become effective and remained effective in compliance with the provisions of the Securities Act (subject to the restrictions referred to in Section 2(a)(ii) hereof) until such time as all of the Registrable Securities offered in such underwritten offering have been disposed of in accordance with the intended methods of disposition thereof set forth in such Shelf Registration Statement. -4- (d) Selection of Book-Runners; Underwriting Arrangements. In any underwritten offering pursuant to this Section 2, the participating Holders (or if IR is participating, IR) and the Company shall each have the right to select one book-runner and such co-book runners shall be the sole book-runners for any such offering. The Company (together with the Holders) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting, as well as all other documents customary in similar offerings, including, without limitation, custody agreements, powers of attorney and indemnification agreements, as applicable. In any underwritten offering pursuant to this Section 2, the co-book-runners shall share equally in the management fee relating to such underwritten offering and the book-runner selected by the Company shall have the lead position on the cover page of any prospectus used in connection with such underwritten offering. (e) Priority in Registrations. If the book-runner(s) for an underwritten offering pursuant to this Section 2 advises the Company and the applicable Holders in writing that, in its opinion, the number of securities requested to be included in such offering by the Company, if any, and the Holders exceeds the largest number or amount of securities which can be sold without reasonably expecting to have an adverse effect on such offering, including the price at which such securities can be sold, the number of such securities to be included in such registration shall be reduced to such extent, and the Company shall include in such registration the number of securities as follows: (i) first, all the Registrable Securities requested to be included in such registration by the Holders which in the opinion of such book-runner(s) can be sold without adverse effect on the offering, allocated, if the amount is less than all the Registrable Securities to be sold, pro rata among the Holders of such Registrable Securities on the basis of the number of Registrable Securities proposed to be sold by such Holders, and (ii) second, to the extent that the number of Registrable Securities which the Holders have requested to be included in such registration is less than the number or amount of securities which the Company has been advised by its book-runner can be sold in such offering without having the adverse effect referred to above, as many of the securities which the Company proposes to sell for its own account, if any, as can be sold in such offering without having such adverse effect referred to above. If any Holder advises the book-runner(s) of any underwritten offering that the Registrable Securities covered by the registration statement cannot be sold in such offering within a price range acceptable to such Holder, then such Holder shall have the right to exclude its Registrable Securities from registration. 3. Incidental Registration. (a) Rights to Include Registrable Securities. At any time after the Closing Date and notwithstanding anything to the contrary contained in Section 3.3 of the Standstill and Voting Agreement, if the Company proposes to register (other than pursuant to Section 2 hereof) any of its securities under the Securities Act (other than a registration on Form S-8, S-4 or any successor or similar forms), whether or not for sale for its own account (and including any registration pursuant to a request or demand registration right of any other person), then the Company will, each such time (until such time as there cease to be any Registrable Securities), subject to the provisions of Section 3(c) hereof, give prompt written notice to the Holders of its intention to do so and of the Holders' rights under this Section 3, at least 20 business days prior to the anticipated filing date of the registration statement relating to such registration. Such notice shall offer the Holders the opportunity to include in such registration statement, subject to -5- Section 3(c) hereof, such number of Registrable Securities as each Holder may request: provided that if the Company's notice pursuant to this Section 3(a) shall have been given prior to the expiration of the lock-up period in Section 3.3(a) of the Standstill and Voting Agreement then the Holders shall only have the right to include Registrable Securities in such registration statement if the aggregate number of Registrable Securities requested to be included by all requesting Holders exceeds 4,000,000 shares or if less than such number of Registrable Securities are then Registrable Securities, all of the remaining Registrable Securities. Upon the written request of any Holder made within 15 business days after the receipt of the Company's notice (which request shall specify the information required by the penultimate paragraph of Section 5 hereof, it being understood, however, that the failure to include any such information in such request shall not result in a forfeiture of such Holder's right to include its Registrable Securities but that the Company shall not be required to include such Registrable Securities unless and until such Holder complies with such penultimate paragraph), the Company shall use its reasonable best efforts to effect the proposed registration under the Securities Act of all Registrable Securities which the Company has been so requested to register by such Holder; provided that (i) if such registration involves an underwritten offering, any such Holder must sell its Registrable Securities to the underwriters selected by the Company on the same terms and conditions as those that apply to similar securities of the Company to be registered thereunder (subject to differences customary in combined primary and secondary offerings and except that the indemnification obligations of any such Holder, as between such Holder and the Company, shall be limited to those obligations set forth in Section 6 hereof) and (ii) if, at any time after giving written notice of its intention to register any securities pursuant to this Section 3(a) and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register such securities, the Company shall give written notice to each such Holder and, thereupon, shall be relieved of its obligation to register any Registrable Securities in connection with such registration. Any such Holder may elect, in writing no less than five business days prior to the anticipated effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration. Upon any such election, the Company shall be deemed to have satisfied its obligations to such Holder pursuant to this Section 3 with respect to such registration statement. No registration effected under this Section 3 shall relieve the Company of its obligations under Section 2 hereof with respect to Registrable Securities not registered and sold pursuant to this Section 3. If upon such election, the number of Registrable Securities to be included in such registration statement by the Holders does not exceed 4,000,000 shares (or if less than such number of Registrable Securities are then Registrable Securities, all of the remaining Registrable Securities), then no Registrable Securities shall be included in such registration statement and the Company shall nevertheless be deemed to have satisfied its obligations under this Section 3 with respect to such offering (but shall be obligated to comply with all provisions of this Section 3 with respect to any subsequent offering). The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 3. (b) Selection of Book-Runners; Underwriting Arrangements. In any underwritten offering pursuant to this Section 3 occurring after the six month anniversary of the Closing Date in which the participating Holders and IR propose to include shares of Company Common Stock, each of IR and the Company shall have the right to select one book-runner and such co-book-runners shall be the sole book-runners for any such offering. In any underwritten offering -6- pursuant to this Section 3, the co-book-runners shall share equally in the management fee relating to such underwritten offering and the book-runner selected by the Company shall have the lead position on the cover page of any prospectus used in connection with such underwritten offering. (c) Priority in Incidental Registrations. If the book-runner selected by the Company for an underwritten offering pursuant to this Section 3 advises the Company in writing that, in its opinion, the number or amount of securities (including all Registrable Securities) which the Company, the Holders and any other persons intend to include in such registration exceeds the largest number or amount of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold, the number or amount of such securities to be included in such registration shall be reduced to such extent, and the Company will include in such registration such maximum number or amount of securities as follows: (i) During the six-month period following the Closing Date, (A) first, there shall be included the securities initially proposed by the Company to be included in such registration for its own account, (B) second, to the extent that the number or amount of securities which the Company proposes to sell for its own account is less than the number or amount of securities that the Company has been advised by the book-runner selected by the Company can be sold in such offering without adverse effect on the offering, there shall be included in such registration all Registrable Securities requested to be included in such registration by the Holders, but only to the extent such adverse effect shall be avoided, and such securities of such Holders shall be allocated pro rata among such Holders on the basis of the relative number of Registrable Securities requested to be included in such registration statement, and (C) third, to the extent that the number of securities which the Company proposes to include for its own account and the Holders propose to include in such registration is less, in the aggregate, than the number of securities which the Company has been advised by its book-runner can be sold in such offering without having the adverse effect referred to above, there shall be included all other securities (other than Registrable Securities) requested to be included in such registration by holders other than the Holders, but only to the extent such adverse effect shall be avoided, and such securities of such holders shall be allocated pro rata among such holders on the basis of the relative number or amount of such securities then held by each such holder; provided that any such number or amount thereby allocated to each such Holder or holder that exceeds such Holder's or holder's request shall be reallocated among the remaining requesting Holders or holders, as the case may be, in like manner or amount of such securities then held by each such Holder or holder; and (ii) During the period following the date that is six-months after the Closing Date, (A) first, the securities to be included in such registration shall be allocated pro rata among the securities initially proposed by the Company to be included in such registration for its own account and the number of Registrable Securities initially requested to be included in such registration by the Holders, on the basis of the relative number or amount of the securities to be included in such registration by the Company, on the one hand, and by each such Holder (such Registrable Securities to be so included shall be allocated pro rata among the Holders on the basis of the relative number of such Registrable Securities then held by each such Holder), on the other hand, and (B) second, to the extent that the number or amount of securities which the -7- Company, for its own account, and the Holders propose to sell pursuant to Section 3(a) hereof is less than the number or amount of securities which the Company has been advised by its book-runner can be sold in such offering without having the adverse effect referred to above, then there shall be included in such registration statement all other securities (other than Registrable Securities) requested to be included in such registration by holders other than the Holders, but only to the extent such adverse effect shall be avoided, and such securities of such holders shall be allocated pro rata among such holders on the basis of the relative number or amount of such securities then held by each such holder. 4. Holdback Agreements. (a) Restrictions on Public Sale by the Holders. In connection with any underwritten public offering pursuant to Section 2 or 3 hereof, each Holder including Registrable Securities in such offering agrees that, upon request of the book-runner(s) for such offering, it shall not effect any sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities during the 15 days prior to, and during such period as the book-runner(s) may request (not to exceed 90 days) beginning on, the offering date of Company Common Stock pursuant to an effective registration statement, except as part of such registration. (b) Restrictions on the Public Sale by the Company. In connection with any underwritten public offering pursuant to Section 2 or 3 hereof, the Company agrees (i) not to effect any public sale or distribution of any securities substantially similar to the Registrable Securities (other than in connection with an employee stock option or other benefit plan) during the 15 days prior to, and during such period as the book-runner(s) may request (not to exceed 90 days) beginning on, the offering date of the Registrable Securities pursuant to an effective registration statement (except as part of such registration), (ii) that any agreement entered into after the date of this Agreement pursuant to which the Company issues or agrees to issue any privately placed Company Common Stock or other securities substantially similar to the Registrable Securities shall contain a provision under which holders of such securities agree not to effect any sale or distribution of any such securities during the period referred to in the foregoing clause (i), including any sale pursuant to Rule 144 under the Securities Act (except as part of such registration, if permitted) and (iii) to use its reasonable best efforts to cause any other Person that executes and delivers a "lock-up" agreement in connection with a Qualifying Public Offering to enter into an agreement on substantially the same terms as those set forth in the foregoing clauses (i) and (ii) with the underwriters of an underwritten public offering pursuant to Section 2 or 3 hereof. 5. Registration Procedures. If and whenever the Company is required to use its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement, the Company will, as expeditiously as possible: (a) prepare and file with the SEC a registration statement on the form required by this Agreement or (if no particular form is specified pursuant hereto) on any other form for which the Company then qualifies or which counsel for the Company shall deem appropriate, and which form shall be available for the sale of the Registrable Securities in accordance with the intended methods of distribution thereof, and use its reasonable best efforts to cause such -8- registration statement to become and remain effective as promptly as practicable (except as otherwise specified in Section 2(a) in the case of the Shelf Registration Statement); provided, that a reasonable time before filing with the SEC a registration statement or prospectus or any amendments or supplements thereto (other than deemed post-effective amendments due to the filing by the Company of periodic reports under the Exchange Act), the Company will furnish to each Holder copies of the form of registration statement or preliminary prospectus or amendment or supplement thereto proposed to be filed and furnish to counsel to the Holders copies of all such documents proposed to be filed, which documents will be subject to the review of the Holders and such counsel and shall not be filed without the approval of the Holders, which approval shall not be unreasonably withheld or delayed; (b) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to (A) effect dispositions of Registrable Securities thereunder in accordance with the intended method of distribution by the Holders and (B) keep such registration statement effective (i) with respect to the Shelf Registration Statement, for the period specified in Section 2(a), and (ii) with respect to all other registration statements, for a period of not less than 120 days or such shorter period which will terminate when all Registrable Securities covered by such registration statement have been sold; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement; (c) promptly furnish to each Holder and each underwriter, if any, of Registrable Securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all financial statements, schedules and exhibits thereto), the prospectus included in such registration statement (including each preliminary prospectus), in conformity with the requirements of the Securities Act, copies of any correspondence with the SEC or its staff relating to the registration statement and such other documents as the Holders or underwriters may reasonably request in order to facilitate the disposition of the Registrable Securities; (d) use its reasonable best efforts to register or qualify such Registrable Securities under the securities or blue sky laws of such jurisdictions as each Holder or each underwriter, if any, reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable each Holder and each underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions; provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction; (e) use its reasonable best efforts to cause the Registrable Securities covered by such registration statement to be registered with or approved by such other Governmental Entity as may be necessary by virtue of the business and operations of the Company to enable the Holders to consummate the disposition of such Registrable Securities, except as may be required solely as a consequence of the nature of the selling Holder's business, in which case the -9- Company will cooperate in all reasonable respects with the filing of such registration statement and the granting of such approvals; (f) promptly notify the Holders at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event which comes to the Company's attention if as a result of such event the prospectus included in such registration statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will promptly prepare and furnish to each Holder a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (g) use its reasonable best efforts to prevent the issuance of and obtain the withdrawal of any stop order suspending the effectiveness of a registration statement relating to the Registrable Securities or of any order preventing or suspending the use of any preliminary or final prospectus at the earliest practicable moment; (h) if requested in writing by the managing underwriter or underwriters or any Holder, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriters and any such Holder reasonably agree should be included therein, including, without limitation, information relating to the plan of distribution with respect to such Registrable Securities or information with respect to the number or amount of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities; and make all required filings of each such prospectus supplement or post-effective amendment as soon as practicable after notification of the matters to be incorporated in such prospectus supplement or post-effective amendment; (i) cooperate with the Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request prior to any sale of the Registrable Securities to the underwriters; (j) use its reasonable best efforts to cause all such Registrable Securities to be listed on a national securities exchange or automated quotation system and on each securities exchange or quotation system on which similar securities issued by the Company are then listed, and enter into such customary agreements including a listing application and listing agreement in customary form, provided that the applicable listing requirements are satisfied, and to provide a transfer agent and registrar for such Registrable Securities covered by such registration statement no later than the effective date of such registration statement and to maintain such listing for the period of effectiveness of such registration statement; (k) enter into such customary agreements (including an underwriting agreement in customary form) and take all such other actions as the Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, -10- including providing customary indemnification, supporting each such Holder's efforts to execute block trades with institutional buyers and, with respect to an underwritten offering pursuant to this Agreement, making appropriate members of senior management of the Company available (subject to consulting with them in advance as to schedule) for customary participation in telephonic, in-person conferences or "road show" presentations to potential investors; (l) make available for inspection by the Holders, any underwriter participating in any disposition pursuant to such registration statement, one counsel for all such Holders and one counsel for all such underwriters, and any accountant or other agent retained by any such Holder or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, if any, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's and its subsidiaries' officers, directors and employees to supply all information and respond to all inquiries reasonably requested by any such Inspector in connection with such registration statement (collectively, the "Records"); provided, that the Company may require, as a condition to the provision to any Inspector of any Records, that such Inspector execute and deliver to the Company a written agreement, in form and substance reasonably satisfactory to the Company, pursuant to which such Inspector agrees to the confidential treatment of such Records; (m) in connection with any underwritten offering pursuant to such registration statement, use its reasonable best efforts to obtain (i) an opinion or opinions of counsel to the Company and (ii) a "cold comfort" letter or letters from the Company's independent public accountants in customary form and covering such matters of the type customarily covered by opinions and "cold comfort" letters as the Holders or the underwriter requests; (n) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, within the required time periods, an earnings statement covering a period of at least twelve months, beginning with the first fiscal quarter of the Company after the effective date of the registration statement (as the term "effective date" is defined in Rule 158(c) under the Securities Act), which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any successor provisions thereto; (o) promptly notify the Holders, counsel to the Holders and the managing underwriter or agent, (i) when the registration statement, or any post-effective amendment to the registration statement, shall have become effective, or any supplement to the prospectus or any amendment to the prospectus shall have been filed, (ii) of the receipt of any comments from the SEC, (iii) of any request of the SEC to amend the registration statement or amend or supplement the prospectus or for additional information, and (iv) of the issuance by the SEC 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 registration statement for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes; and (p) cooperate with each selling Holder and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with -11- any filings required to be made with the New York Stock Exchange or any other applicable securities exchange and/or the NASD. It shall be a condition precedent to the obligation of the Company to take any action pursuant to this Agreement in respect of the Registrable Securities which are to be registered at the request of any Holder that any such Holder shall furnish to the Company such information regarding the Registrable Securities held by any such Holder and the intended method of disposition thereof as the Company shall reasonably request in order to comply with the applicable rules of the SEC or any other Governmental Entity in connection with such registration. Such information shall include, without limitation, (i) the full name and address of the registered and beneficial owner of the Registrable Securities to be registered, (ii) the number of Registrable Securities to be registered, (iii) the number and type of other securities of the Company (including other Registrable Securities) held by the Holder, and (iv) the method or methods of disposition of Registrable Securities to be registered. Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(f) hereof or condition described in Section 2(a)(ii) hereof, each such Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Holder receives the copies of the prospectus supplement or amendment contemplated by Section 5(f) hereof or notice from the Company of the termination of the Deferral Period, and, if so directed by the Company, each such Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such Holder's possession, of the prospectus covering such Registrable Securities that was current at the time of receipt of such notice. 6. Indemnification. (a) Indemnification by the Company. In the event of any registration of any Registrable Securities under the Securities Act pursuant to Section 2 or 3 hereof, the Company will, and it hereby does, indemnify and hold harmless, to the full extent permitted by law, each Holder, its directors and officers, employees, stockholders, general partners, limited partners, members, advisory directors, managing directors (and directors, officers, stockholders, general partners, limited partners, members, advisory directors, managing directors and controlling persons thereof), each other person who participates as an underwriter in the offering or sale of such securities and each other person, if any, who controls, is controlled by or is under common control with each such Holder or any such underwriter within the meaning of the Securities Act, against any and all losses, claims, damages or liabilities, joint or several, and expenses (including any reasonable attorneys' fees and any and all expenses whatsoever incurred in investigating, preparing or defending against any investigation, litigation or other action commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation) ("Losses") to which any such Holder, any such director, or officer, employee, stockholder, general or limited partner, member, or advisory or managing director or any such underwriter or controlling person may become subject under the Securities Act, state securities or blue sky laws, common law or otherwise insofar as such Losses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Registrable Securities were registered under the Securities Act, any preliminary, final or summary prospectus contained therein, or any -12- amendment or supplement thereto or (ii) 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 (in the case of a prospectus, in light of the circumstances under which they were made), and the Company will reimburse each such Holder and each such director, officer, employee, general partner, limited partner, advisory director, managing director or underwriter and controlling person for any legal or any other expenses incurred by them as such expenses are incurred in connection with investigating or defending against such Loss or any action or proceeding in respect thereof; provided that the Company shall not be liable in any such case to the extent that any such Loss arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement or amendment or supplement thereto or in any such preliminary, final or summary prospectus in reliance upon and in conformity with written information furnished to the Company through any such Holder or any such director, officer, employee, general or limited partner, managing director or underwriter specifically stating that it is for use in the preparation thereof; and provided, further, that with respect to any untrue statement or omission of material fact made in any prospectus, the indemnity agreement in this Section 6(a) shall not inure to the benefit of any Holder or underwriter from whom the person asserting any such Loss purchased the Registrable Securities concerned, to the extent that any such Loss of such person occurs under circumstances where it shall have been determined that (w) the Company had previously furnished copies of a supplemented prospectus to such Holder or underwriter, (x) delivery of a prospectus was required by the Securities Act to be made to such person, (y) the untrue statement or omission of a material fact contained in the preliminary, final or summary prospectus was corrected in such supplement thereto and (z) there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the prospectus as so supplemented. (b) Indemnification by Holders and Underwriters. Any Holder and any underwriter will, and they hereby do, indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 6(a) hereof) the Company and its directors, officers, employees, controlling persons and all other prospective sellers and their respective directors, officers, general and limited partners, managing directors, and their respective controlling persons, against any and all Losses to which the Company and its directors, officers, employees, controlling persons or any other prospective sellers and their respective directors, officers, general and limited partners, managing directors, and their respective controlling persons may become subject under the Securities Act, state securities or blue sky laws, common law or otherwise insofar as such Losses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained, on the effective date thereof, in any registration statement under which such Registrable Securities were registered under the Securities Act, any preliminary, final or summary prospectus contained therein, or any amendment or supplement thereto or (ii) 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 (in the case of a prospectus, in light of the circumstances under which they were made), and any such Holder and any underwriter will reimburse the Company and its directors, officers, employees, controlling persons and all other prospective sellers and their respective directors, officers, general and limited partners, managing directors, and their respective controlling persons for any legal or any other expenses reasonably incurred by them as such expenses are incurred in connection with investigating or defending against such Loss or any -13- action or proceeding in respect thereof; provided that any such Holder and any underwriter shall only be liable in any such case if any such Loss (or action or proceeding in respect thereof) or expense arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement or amendment or supplement thereto or in any such preliminary, final summary prospectus in reliance upon and in conformity with written information furnished to the Company by any such Holder or any such underwriter specifically stating that it is for use in the preparation thereof. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any such director, officer, employee or controlling person. No Holder shall be liable under this Section 6 for any amounts exceeding the product of the purchase price per Registrable Security and the number of Registrable Securities being sold pursuant to such registration statement by any such Holder. (c) Notices of Claims, Etc. Promptly after receipt by an indemnified party hereunder of written notice of the commencement of any action or proceeding with respect to which a claim for indemnification may be made pursuant to this Section 6, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party, promptly give written notice to the latter of the commencement of such action or proceeding; provided that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding subsections of this Section 6, except to the extent that the indemnifying party is actually materially prejudiced by such failure to give notice. In case any such action or proceeding is brought against an indemnified party, the indemnifying party will be entitled to participate in and, jointly with any other indemnifying party similarly notified, to assume the defense thereof, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party. Notwithstanding the foregoing, the indemnified party will have the right to employ its own counsel in any such case, but the fees and expenses of such counsel will be borne by the indemnified party unless (i) the employment of such counsel shall have been authorized in writing by the indemnifying party, (ii) the indemnifying party shall have failed to employ counsel to take charge of the defense within a reasonable time after commencement of the action or proceeding, or (iii) the indemnified party shall have concluded that there may be defenses available to it which are different from or in addition to the defenses available to one or more indemnifying party. An indemnifying party will not be subject to any liability for any settlement made without its consent (which consent shall not be unreasonably withheld). No indemnifying party will consent to the entry of any judgment or enter into any settlement of any pending or threatened proceeding which (x) does not include as an unconditional term thereof the giving by the claimant or plaintiff to all indemnified parties of a release from all liability in respect to such claim or litigation or (y) involves the imposition of equitable remedies or the imposition of any other obligations on such indemnified party other than financial obligations fully indemnified by the indemnifying party hereunder. Notwithstanding anything to the contrary contained herein, an indemnifying party will not be obligated to pay the fees and expenses of more than one counsel (together with appropriate local counsel) for all parties indemnified by such indemnifying party with respect to such claim. (d) Contribution. If the indemnification provided for in this Section 6 is unavailable to an indemnified party under Section 6(a) or Section 6(b) hereof (other than by reason of exceptions provided in those Sections) in respect of any Losses, then each applicable -14- indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect (i) the relative benefits received by the Company from the issuance of the Registrable Securities sold by the applicable Holder, on the one hand, and by such Holder from the sale of its Registrable Securities, on the other, or, (ii) solely if the allocation provided for in clause (i) is not permitted by applicable law, to reflect not only the relative benefits but also the relative fault of the Company, on the one hand, and the applicable Holders, on the other, in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of the Company, on the one hand, and of the applicable Holders, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or such applicable Holders and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6(a) and 6(b), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action, proceeding or claim. The Company and each Holder agree that it would not be just and equitable if contribution pursuant to this Section 6(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 6(d), no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by any such Holder and distributed to the public were offered to the public exceeds the amount of any damages which any such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (e) Non-Exclusivity. The obligations of the parties under this Section 6 shall be in addition to any liability which any party may otherwise have to any other party. (f) Indemnification Payments. The indemnification and contribution required by Sections 6(a), 6(b) and 6(d) shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred. 7. Miscellaneous. (a) Remedies. The Company and the Holders acknowledge and agree that in the event of any breach of this Agreement by any of them, the Holders and the Company would be irreparably harmed and could not be made whole by monetary damages. Each party accordingly agrees (i) to waive the defense in any action for specific performance that a remedy at law would be adequate and (ii) that the parties, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to compel specific performance of this Agreement. -15- (b) Entire Agreement. This Agreement, the Purchase Agreement and the Transaction Agreements constitute the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and there are no restrictions, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof, other than those expressly set forth or referred to herein, in the Purchase Agreement or in the Transaction Agreements. This Agreement supersedes all prior agreements and understandings among the parties hereto with respect to the subject matter hereof (other than the Purchase Agreement and the Transaction Agreements). (c) Notices. Any notice, request, instruction or other document to be given hereunder by any party hereto to another party hereto shall be in writing, shall be delivered personally or sent by certified or registered mail, postage prepaid, return receipt requested, or by Federal Express or other delivery service, to the address of the party set forth below or to such other address as the party to whom notice is to be given may provide in a written notice to the Company, a copy of which written notice shall be maintained on file with the Secretary of the Company. (i) If to the Company, to: The Timken Company 1835 Dueber Avenue, S.W. Canton, Ohio 44706 Attn: Senior Vice President and General Counsel (330) 471-4041 (telecopier) (330) 471-3002 (telephone) (ii) With a copy to: Jones Day North Point 901 Lakeside Avenue Cleveland, Ohio 44114 Attn: Lyle G. Ganske, Esq. (216) 579-0212 (telecopier) (216) 586-3939 (telephone) (iii) If to IR, to: c/o Ingersoll Rand Company 200 Chestnut Ridge Road Woodcliff Lake, New Jersey 07677 (201) 573-3400 (telecopier) (201) 573-3473 (telephone) Attention: Senior Vice President and General Counsel With a copy to: -16- Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017 (212) 455-2502 (telecopier) (212) 455-3971 (telephone) Attention: Maripat Alpuche, Esq. or to such other address as any party hereto may, from time to time, designate in a written notice given in like manner. Except as otherwise provided herein, any notice under this Agreement will be deemed to have been given (x) on the date such notice is personally delivered or delivered by facsimile, (y) the next succeeding Business Day after the date such notice is delivered to the overnight courier service if sent by overnight courier, or (z) five Business Days after the date such notice is sent by registered or certified mail; provided that in each case notices received after 4:00 p.m. (local time of the recipient) shall be deemed to have been duly given on the next Business Day. (d) Governing Law. This Agreement shall be governed by the laws of the State of New York. (e) Consent to Jurisdiction; Waiver of Jury Trial. Each of the parties irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York located in the borough of Manhattan in the City of New York, or if such court does not have jurisdiction, the Supreme Court of the State of New York, New York County, for the purposes of any Proceeding arising out of this Agreement or any transaction contemplated hereby. Each of the parties hereto irrevocably and fully waives the defense of an inconvenient forum to the maintenance of such Proceeding. Each of the parties further agrees that service of any process, summons, notice or document to such party's respective address listed above in one of the manners set forth in Section 8(c) shall be deemed in every respect effective service of process in any such Proceeding. Nothing herein shall affect the right of any Person to serve process in any other manner permitted by Law. Each of the parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any Proceeding arising out of this Agreement or the transactions contemplated hereby in (i) the United States District Court for the Southern District of New York or (ii) the Supreme Court of the State of New York, New York County, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding brought in any such court has been brought in an inconvenient forum. The parties hereto hereby irrevocably and unconditionally waive trial by jury in any Proceeding relating to this Agreement or any other agreement entered into in connection therewith and for any counterclaim with respect thereto. (f) MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT. (g) Severability. The invalidity, illegality or unenforceability of one or more of the provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or -17- enforceability of this Agreement, including any such provision, in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law. (h) No Inconsistent Agreements. Until the date that is the one-year anniversary of the Closing Date, the Company represents and agrees that the rights granted to the Holders hereunder do not and shall not in the future conflict in any way with rights granted to other holders of the Company's securities. (i) Successors; Assigns. The provisions of this Agreement shall be binding upon and accrue to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. (j) Amendments, Waivers. This Agreement may not be amended, modified or supplemented and no waivers of or consents to departures from the provisions hereof may be given unless consented to in writing by the Company and each Holder. (k) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same Agreement. (l) Rule 144. Following the Closing, the Company shall timely file with the SEC all reports and other filings required under the Exchange Act for IR or its Affiliates to sell shares of Company Common Stock pursuant to Rule 144 or any similar rule of regulation hereafter adopted by the SEC. Further, the Company shall take such further action and shall offer all reasonable and necessary assistance including, without limitation, the delivery of a legal opinion letter and instructions to the Company's stock transfer agent to enable the sale by any Holder of Registrable Securities pursuant to said Rule 144 or any similar rule or regulation. (m) Other Registration Rights. The Company represents that there is not outstanding any right of registration under the Securities Act relating to any shares of Company Common Stock, other equity securities or any securities convertible into, exchangeable for or evidencing the right to purchase any shares of Company Common Stock. Until the date that is the one-year anniversary of the Closing Date, the Company covenants that it will not grant any right of registration under the Securities Act relating to any of its shares of Company Common Stock, other equity securities or other securities similar to the Registrable Securities to any person unless each Holder shall be entitled to have included in any registration effected (A) pursuant to Section 2 hereof, all Registrable Securities requested by it to be so included prior to the inclusion of any securities requested to be registered by the persons entitled to any such other registration rights pursuant to any provision providing registration rights comparable to those contained in Section 3 hereof and (B) pursuant to Section 3 hereof, all Registrable Securities requested by each such Holder to be so included prior to the inclusion of any securities requested to be registered by the persons entitled to any such other registration rights pursuant to any provision providing incidental registration rights comparable to those contained in Section 3 hereof. -18- (n) Headings. The headings and captions contained herein are for convenience of reference only and shall not control or affect the meaning or construction of any provision hereof. -19- IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above. THE TIMKEN COMPANY By: /s/ William R. Burkhart _________________________________ Name: William R. Burkhart Title: Senior Vice President and General Counsel INGERSOLL-RAND COMPANY By: /s/ Ronald G. Heller _________________________________ Name: Ronald G. Heller Title: Vice President EX-5 6 jointfilingagr.txt JOINT FILING AGREEMENT JOINT FILING AGREEMENT The undersigned, being authorized thereunto, hereby execute this agreement as an exhibit to this Schedule 13D to evidence the agreement of the below-named parties, in accordance with the rules promulgated pursuant to the Securities Exchange Act of 1934, to file this Schedule, and any amendments or supplements thereto, jointly on behalf of each party. INGERSOLL-RAND COMPANY INGERSOLL-RAND (BARBADOS) HOLDING INCORPORATED INGERSOLL-RAND GLOBAL HOLDING COMPANY LIMITED INGERSOLL-RAND COMPANY LIMITED By /s/ Patricia Nachtigal _________________________ Patricia Nachtigal Senior Vice President General Counsel Dated: February 28, 2003 -----END PRIVACY-ENHANCED MESSAGE-----