**Exhibit 10.4**

 

WARRANTHOLDERS RIGHTS AGREEMENT 

 

WARRANTHOLDERS RIGHTS AGREEMENT dated as of July 16, 2003 among CYBEX INTERNATIONAL, INC., a New York corporation (together with its successors,“Cybex”), THE CIT GROUP / BUSINESS CREDIT, INC. (“CIT”) (CIT and such other warrantholders of Cybex as may, from time to time, become parties to this Agreement in accordance with the provisions hereof, the“Warrantholders”) and the stockholders of Cybex identified on the signature pages hereof. 

 

WHEREAS, on the date hereof, Cybex has issued and outstanding **[8,830,962]** shares of Voting Common Stock (as defined herein), the SigningStockholders (defined below) are the beneficial owners of **[2,793,256]** shares of Voting Common Stock, there are outstanding options to purchase **[324,750]** shares of Voting Common Stock and there are outstanding warrants to purchase**[263,501]** shares of Voting Common Stock, and CIT purchased and is the beneficial owner of the Warrants (as defined herein) to purchase **[176,619]** shares of Voting Common Stock, which constitutes two percent (2%) of the issued andoutstanding Voting Common Stock of Cybex; and 

 

WHEREAS, Cybexwishes to provide to the Warrantholders and the holders of the Conversion Shares the rights described herein; 

 

NOW THEREFORE the parties hereto agree as follows: 

 

1. ARTICLE I 

 

DEFINITIONS 

 

2. 

 

a. Section 1.1. Definitions. 

 

b. 

 

Unless otherwise defined herein, the following terms used in this Agreement shall have the meanings specified below.

 

“Affiliate” means, with respect to any Person, anyof (i) a director or executive officer of such Person, (ii) a spouse, parent, sibling or descendant of such Person (or a spouse, parent, sibling or descendant of any director or executive officer of such Person) and (iii) any other Person that,directly or indirectly, controls, or is controlled by or is under common control with such Person. For the purpose of this definition, “control” (including the terms “controlling”, “controlled by” and “under commoncontrol with”), as used with respect to any Person, means 

the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through theownership of voting securities or by contract or agency or otherwise. 

 

“BHC Act” means the Bank Holding Company Act of 1956, as amended. 

 

“Commission” means the Securities and Exchange Commission or any other Federal agency at the time administering the Securities Act. 

 

“Common Stock” means the Voting Common Stock. 

 

“Conversion Shares” means (i) any shares of Voting Common Stock or other securities issued upon the exercise ofany Warrants and (ii) any securities issued with respect to any of such shares or other securities referred to in clause (i) upon the conversion thereof into other securities or by way of stock dividend or stock split or in connection with acombination of shares, recapitalization, merger, consolidation or other reorganization or otherwise; provided that any of such securities shall cease to be Conversion Shares when such securities shall have (x) been disposed of pursuant to aPublic Sale or (y) ceased to be outstanding. 

 

“Debt”of a Person means at any date, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Personto pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (iv) all Capital Leases of such Person, (v) all obligations of such Person to purchase securities (or otherproperty) which arise out of or in connection with the sale of the same or substantially similar securities (or property), (vi) all non-contingent obligations of such Person to reimburse any bank or other Person in respect of amounts paid under aletter of credit or similar instrument, (vii) all equity securities of such Person (other than the Warrants) subject to repurchase or redemption otherwise than at the sole option of such Person, (viii) all Debt secured by a Lien on any asset of suchPerson, whether or not such Debt is otherwise an obligation of such Person, and (ix) all Debt of others Guaranteed by such Person. 

 

“Exchange Act” means the Securities Exchange Act of 1934, or any successor Federal statute, and the rules and regulations of the Commissionthereunder, all as the same shall be in effect at the time. Reference to a particular section of the Securities Exchange Act of 1934 shall include a reference to the comparable section, if any, of any such successor Federal statute. 

 

“Initiating Holders” has the meaning set forth in Section 3.1hereof. 

 

“Investment” means any investment in anyPerson, whether by means of share purchase, capital contribution, loan, time deposit or otherwise. 

 

“Other Shares” has the meaning set forth in Section 3.1. 

 

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“Person” means a corporation, an association, a partnership, a trust, a limited liabilitycompany, an organization, a business, an individual, a government or a subdivision thereof or a governmental agency. 

 

“Public Sale” means any sale of Common Stock to the public pursuant to an offering registered under the Securities Act or to the public througha broker, dealer or market maker pursuant to the provisions of Rule 144 (or any successor provision then in effect) adopted under the Securities Act. 

 

“Registrable Securities” means any Conversion Shares until the date (if any) on which such Conversion Shares shall have been transferred orexchanged and new certificates for them not bearing a legend restricting further transfer shall have been delivered by Cybex and subsequent disposition of them shall not require registration or qualification of them under the Securities Act or anysimilar state law then in force. 

 

“RegistrationExpenses” means all expenses incident to Cybex’ performance of or compliance with Sections 3.1 through 3.5 hereof, including (i) all registration, filing and NASD fees, (ii) all fees and expenses of complying with securities or blue skylaws, (iii) all word processing, duplicating and printing expenses, (iv) all messenger and delivery expenses, (v) the reasonable fees and disbursements of counsel for Cybex and of its independent public accountants, including the expenses of anyspecial audits or “cold comfort” letters required by or incident to such performance and compliance, (vi) the fees and disbursements of any one counsel and any one accountant retained by the holder or holders of more than 50% of theRegistrable Securities being registered or, in the case of any registration effected pursuant to Section 3.1, as the Initiating Holders shall have selected to represent all holders of the Registrable Securities being registered)***,***(vii)premiums and other costs of policies of insurance (if any) against liabilities arising out of the public offering of the Registrable Securities being registered if Cybex desires such insurance and (viii) any fees and disbursements of underwriterscustomarily paid by issuers or sellers of securities, but not including underwriting discounts and commissions and transfer taxes, if any, provided that, in any case where Registration Expenses are not to be borne by Cybex, such expensesshall not include (i) salaries of Cybex personnel or general overhead expenses of Cybex, (ii) auditing fees, (iii) premiums or other expenses relating to liability insurance required by underwriters of Cybex or (iv) other expenses for thepreparation of financial statements or other data, to the extent that any of the foregoing either is normally prepared by Cybex in the ordinary course of its business or would have been incurred by Cybex had no public offering taken place.

 

“Regulated Holder” means any holder of Warrants orConversion Shares, if such holder is effectively restricted or prohibited from holding, exercising or transferring, in whole or in part, the Warrants or Conversion Shares by reason of any Regulatory Requirement, including without limitation if suchholder is a bank holding company within the meaning of the BHC Act or a subsidiary thereof subject to Regulation Y under the BHC Act. 

 

“Regulatory Change” means, with respect to any Regulated Holder, (i) any change on or after the date hereof in United States federal or state orforeign laws or regulations (including the 

 

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BHC Act and Regulation Y thereunder); (ii) the adoption on or after the date hereof of any interpretation or ruling applying to such Regulated Holder,individually or as a member of a class, under any United States federal or state or foreign laws or regulations by any court or governmental or regulatory authority charged with the interpretation or administration thereof; or (iii) the modificationon or after the date hereof of any agreement or commitment with any such governmental or regulatory authority that is applicable to or binding upon such Regulated Holder. 

 

“Regulatory Requirement” means any existing or future Federal or state statute, rule, regulation, guideline,order, request or directive (whether or not having the force of law and whether or not failure to comply therewith would be unlawful), including without limitation, the BHC Act and the regulations thereunder. 

 

“Restricted Payment” means (i) any dividend or other distributionon any shares of Cybex’ capital stock (except dividends payable solely in shares of its capital stock of the same class) or (ii) any payment on account of the purchase, redemption, retirement or acquisition of (a) any shares of the Cybex’capital stock or (b) any warrant or other right to acquire shares of Cybex’ capital stock. 

 

“Restricted Securities” means the Warrants, the Conversion Shares and any securities obtained upon exchange for or upon conversion or transferof or as a distribution on Warrants, the Conversion Shares or any such securities; provided that particular securities shall cease to be Restricted Securities when such securities shall have (x) been disposed of pursuant to a Public Sale, (y)been otherwise transferred or exchanged and new certificates for them not bearing a legend restricting further transfer shall have been delivered by Cybex and subsequent disposition of them shall not require registration or qualification of themunder the Securities Act or any similar state law then in force or (z) ceased to be outstanding. Whenever any particular securities cease to be Restricted Securities, the holder thereof shall be entitled to receive from the issuer thereof or itstransfer agent, without expense (other than transfer taxes, if any), new securities of like tenor not bearing a legend of the character set forth in Section 2.2. 

 

“Securities Act” means the Securities Act of 1933, or any similar Federal statute, and the rules and regulationsof the Commission thereunder, all as the same shall be in effect at the time. Reference to a particular section of the Securities Act of 1933 shall include a reference to the comparable section, if any, of any such similar Federal statute.

 

“Signing Stockholders” means the Stockholders whoare party hereto other than the Warrantholders. 

 

“Stockholders” means the holders of the Common Stock of Cybex. 

 

“Subsidiary” means any partnership or corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other personsperforming similar functions are at the time directly or indirectly owned by Cybex. 

 

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“Voting Common Stock” means the common stock, par value $.10 per share, of Cybex. 

 

“Warrant Securityholder” means at any time any Warrantholder orany holder of Conversion Shares. 

 

“Warrantholders”has the meaning set forth in the introductory paragraph. 

 

“Warrants” means the Warrant or Warrants originally issued to CIT, as such Warrants may be transferred or otherwise assigned, but only to the extent not theretofore exercised, redeemed or expired in accordance with theirrespective terms. 

 

All references herein to “days”shall mean calendar days unless otherwise specified. 

 

3.ARTICLE II 

 

TRANSFER OF SHARES; PAYMENTS TO WARRANT SECURITYHOLDERS

 

4. 

 

a. Section 2.1. General. 

 

b. 

 

Except as otherwise provided in this Agreement or by law, each Stockholder may transfer its shares of Common Stock at anytime to any Person. 

 

c. Section 2.2. Restrictions onTransfer; Legend on Certificates. 

 

d. 

 

(a) Except as otherwise provided in this Agreement, Restricted Securitiesshall not be transferable except (i) pursuant to an effective registration statement under the Securities Act, (ii) pursuant to Rule 144 or 144A (or any successor provisions) under the Securities Act or (iii) pursuant to a transaction that isotherwise exempt from the registration requirements of the Securities Act. 

 

(b) Unless otherwise expressly provided herein, each certificate for Restricted Securities and each certificate issued in exchange for or upon transfer of any thereof shall be stamped or otherwise imprinted with alegend in substantially the following form: 

 

“THESECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM

 

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SUCH REGISTRATION IS AVAILABLE. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO AND HAVE THE BENEFIT OF A WARRANTHOLDERS RIGHTS AGREEMENTDATED AS OF JULY 16, 2003 AMONG CYBEX INTERNATIONAL, INC. AND THE WARRANTHOLDERS AND STOCKHOLDER PARTIES THERETO, COPIES OF WHICH ARE ON FILE WITH CYBEX INTERNATIONAL, INC.” 

 

(c) Any other provision of this Agreement to the contrary notwithstanding, no transfer of any Restricted Securities otherthan pursuant to a Public Sale may be made to any Person unless such Person shall have agreed in writing that such Person, as a holder of Restricted Securities, and the Restricted Securities it acquires shall be bound by and be entitled to thebenefits of all the provisions of this Agreement applicable to such Restricted Securities (and upon such agreement such Person shall be entitled to such benefits). Any purported transfer of Restricted Securities without compliance with theapplicable provisions of this Agreement shall be void and of no effect, and the purported transferee shall have no rights as a Warrantholder or Shareholder (as applicable) or under this Agreement. In the event of such non-complying transfer, Cybexshall not transfer any such Restricted Securities on its books or recognize the purported transferee as a shareholder or warrantholder, as the case may be, for any purpose, until all applicable provisions of this Agreement have been complied with.

 

e. Section 2.3. Permitted Transfers. 

 

f. 

 

The restrictions on transfer provided in Section 2.2(a) shall not be applicable to (i) any transfer in compliance withfederal and all applicable state securities laws to an Affiliate of the holder of Restricted Securities, from an Affiliate of such holder to such holder or between Affiliates of such holder (if any such Affiliate to whom shares of RestrictedSecurities have been transferred by a holder thereof ceases to be an Affiliate of such holder of Restricted Securities, such Restricted Securities shall immediately be transferred back to the transferor thereof), (ii) any transfer upon the death ofany holder of Restricted Securities to such holder’s executors, administrators or testamentary trustees or (iii) any transfer to a trust the beneficiaries of which include only the holder of such Restricted Securities or such holder’sspouse, parents, siblings or descendants (any transferee referred to in (i), (ii) or (iii) above being referred to herein as a “Permitted Transferee”); provided that no such transfer shall be made to any Permitted Transferee unlesssuch Permitted Transferee shall have agreed in writing that such Permitted Transferee, as a Stockholder or Warrantholder (as the case may be), and the shares of Common Stock or Warrants it acquires shall be bound by and be entitled to the benefitsof all the provisions of this Agreement applicable to Common Stock or Warrants (as the case may be), and upon such agreement such Permitted Transferee shall be entitled to such benefits. 

 

g. Section 2.4. Tag-along Rights. 

 

h. 

 

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If any Signing Stockholder or any of its Affiliates (any such Person for purposes of this Section 2.4,the “Transferor”) wishes to transfer shares of Voting Common Stock or any portion thereof, in an amount in excess of 10% of the outstanding Voting Common Stock of Cybex, to any Person (the “Transferee”), in a single transaction,or a series of transactions, the Transferor shall first give to Cybex and each Warrant Securityholder (pursuant to a list provided by Cybex) a written notice (a “Transfer Notice”), executed by it and the Transferee and containing (i) thenumber of shares of Common Stock that the Transferee proposes to acquire from the Transferor, (ii) the name and address of the Transferee, (iii) the proposed purchase price, terms of payment and other material terms and conditions of such proposedtransfer, (iv) an estimate, in the Transferor’s reasonable judgment, of the fair market value of any non-cash consideration offered by the Transferee and (v) an offer by the Transferee or Transferor to purchase, upon the purchase by theTransferee of any shares of Common Stock owned by the Transferor and for the same per share consideration, that number of Conversion Shares (or if such number is not an integral number, the next integral number which is greater than such number) ofeach Warrant Securityholder which shall be the product of (x) the aggregate number of Conversion Shares either then owned, or issuable upon exercise of Warrants then owned, by such Warrant Securityholder and (y) a fraction, the numerator of whichshall be the number of shares of Common Stock indicated in the Transfer Notice as subject to purchase by the Transferee and the denominator of which shall be the sum of (A) the total number of shares of Common Stock then owned by the Transferor andits Affiliates plus (B) the total number of Conversion Shares either then owned, or issuable upon exercise of Warrants then owned, by each Warrant Securityholder. Each Warrant Securityholder shall have the right, for a period of 15 days after theTransfer Notice is given, to accept such offer in whole or in part, exercisable by delivering a written notice to the Transferor and Cybex within such 15-day period, stating therein the number of shares of Common Stock (which may be the number ofshares set forth in the offer by the Transferor or Transferee, as the case may be, or a portion thereof) to be sold by such Warrant Securityholder to the Transferor or Transferee, as the case may be. Prior to the earlier of (x) the end of such15-day period or (y) the acceptance or rejection by each Warrant Securityholder of the Transferee’s or Transferor’s offer, as the case may be, neither the Transferor nor its Affiliates will complete any sale of shares of Common Stock tothe Transferee. Thereafter, for a period of 90 days after the prohibition under the preceding sentence shall have terminated, the Transferor may sell to the Transferee for the consideration stated and on the terms set forth in the Transfer Noticethe shares of Common Stock stated in the Transfer Notice as subject to purchase by the Transferee, provided that the Transferor or Transferee, as the case may be, shall simultaneously purchase the number of shares of Common Stock ascalculated above from those Warrant Securityholders who have accepted the Transferor’s or Transferee’s offer, as the case may be. The provisions of this Section 2.4 shall not apply to transfers between the Transferor and any of itsAffiliates or between Affiliates of the Transferor. 

 

i. Section2. 5. Restrictions on Transfer by Regulated Holders. 

 

j.

 

(a) Notwithstanding anything else set forth herein to thecontrary, in the event of any reasonable determination in good faith by any Regulated Holder that, by reason of any Regulatory Requirement, such Regulated Holder is effectively restricted or prohibited from 

 

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holding, exercising or transferring (as the case may be) any Warrant or Conversion Shares (or any portion thereof), Cybex shall use reasonable good faithefforts to take such action as it may determine is reasonably necessary and appropriate to permit such Regulated Holder to hold, exercise or transfer (as the case may be) such Warrant or Conversion Shares (or any portion thereof) in such manner asis necessary to comply with such Regulatory Requirement. All such actions shall be taken at the expense of Regulated Holder. Regulated Holder shall give written notice to Cybex of any reasonable determination by it hereunder and the transfer orother action it believes may be necessary or appropriate to permit it to comply with such Regulatory Requirement. In the event of a Regulatory Change, the effect of which is to permit such Regulated Holder to hold, exercise or transfer such Warrantor Conversion Shares in any other manner, the foregoing proviso shall be deemed modified to permit the holding, exercise or transfer of such Warrant or Conversion Shares in such other manner. 

 

(b) Nothing in this Agreement (including without limitation Section 2.4)shall require any Regulated Holder to make a transfer of Warrants or Conversion Shares in a manner not permitted by Section 2.6(a) (an “Impermissible Transfer”). If any provision of this Agreement (including without limitation Section 2.4)would otherwise require any Regulated Holder to make an Impermissible Transfer as a condition precedent to making a transfer of Warrants or Conversion Shares in a manner permitted by Section 2.6(a) (a “Permissible Transfer”), then suchRegulated Holder shall not be required to make such Impermissible Transfer as a condition precedent to making such Permissible Transfer. 

 

k. Section 2.6. No Inconsistent Agreements. 

 

l. 

 

Cybex has not entered into and will not enter into any stockholders rights agreement, registration rights agreement or similar arrangements theperformance by Cybex of the terms of which would in any manner restrict or limit, or materially conflict with, the performance by Cybex of its obligations under this Agreement. 

 

5. ARTICLE III 

 

REGISTRATION RIGHTS 

 

a. 

 

b. Section 3.1. Registration on Request. 

 

c. 

 

(a) The demand registration rights set forth in this section 3.1 may be exercised only at such time or times when Cybex shall not then be eligible toregister Registrable Securities on Form S-3 (or any similar or successor form). At any time or from time to time on or after the date hereof, on not more than two (2) occasions, upon the written request of the holder or holders 

 

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of twenty percent (20%) of all outstanding Conversion Shares and Warrants (such majority determined, for purposes of this Section 3.1, by calculating thenumber of Conversion Shares for which such Warrants are then exercisable) (the “Initiating Holders”), requesting that Cybex effect the registration under the Securities Act of all or part of such Initiating Holders’ RegistrableSecurities and specifying the intended method of disposition thereof, Cybex will promptly give written notice of such requested registration to all holders of Warrants and Registrable Securities, and thereupon Cybex will use its reasonable bestefforts to effect the registration under the Securities Act of: 

 

(i) the Registrable Securities which Cybex has been so requested to register by such Initiating Holders for disposition in accordance with the intended method of disposition stated in such request; 

 

(ii) all other Registrable Securities the holders of whichshall have made a written request to Cybex for registration thereof within 20 days after the giving of such written notice by Cybex (which request shall specify the intended method of disposition of such Registrable Securities); and 

 

(iii) all shares of Common Stock which Cybex may elect toregister in connection with the offering of Registrable Securities pursuant to this Section 3.1, whether for its own account or for the account of a holder of Common Stock, 

 

all to the extent requisite to permit the disposition (in accordance with the intended methods thereof as aforesaid) as expeditiously aspossible of the Registrable Securities and the additional shares of Common Stock, if any, to be so registered, provided that the Warrant Securityholders as a class shall be entitled to not more than two (2) registrations upon request pursuantto this Section 3.1 nor more than one such registration during any 12 month period; provided, however, that no registration upon request pursuant to which less than 50% of the Registrable Shares requested to be registered by such Initiating Holdersare sold shall be counted as a requested registration for purposes of this Section 3.1. 

 

(b) Registrations under this Section 3.1 shall be on such appropriate registration form of the Commission (i) as shall be selected by Cybex and (ii) as shall permit the disposition of such Registrable Securities inaccordance with the intended method or methods of disposition specified in their request for such registration. Cybex agrees to include in any such registration statement all information which holders of Registrable Securities being registered shallreasonably request. 

 

(c) Cybex will pay all RegistrationExpenses in connection with any registration requested pursuant to this Section 3.1. 

 

(d) A registration requested pursuant to this Section 3.1 shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective; provided that a registrationwhich does not become effective after Cybex has filed a registration statement with respect thereto solely by reason of the refusal to proceed by the Initiating Holders 

 

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(other than a refusal to proceed based upon the advice of counsel relating to a matter with respect to Cybex) shall be deemed to have been effected by Cybexat the request of the Initiating Holders unless the Initiating Holders shall have elected to pay all Registration Expenses in connection with such registration, (ii) if, after it has become effective, such registration is interfered with by any stoporder, injunction or other order or requirement of the Commission or other governmental agency or court for any reason, other than by reason of some act or omission by any Warrantholder or Warrant Securityholder, or (iii) the conditions to closingspecified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied, other than by reason of some act or omission by any Warrantholder or Warrant Securityholder. 

 

(e) If a requested registration pursuant to this Section 3.1 involves anunderwritten offering, the underwriter or underwriters thereof shall be selected by the holders of at least a majority (by a number of shares) of the Registrable Securities as to which registration has been requested and shall be reasonablyacceptable to Cybex. 

 

(f) If a requested registration pursuantto this Section 3.1 involves an underwritten offering, and the managing underwriter shall advise Cybex (with a copy of any such notice to each holder of Registrable Securities requesting registration) that, in its opinion, the number of securitiesrequested to be included in such registration (including securities proposed to be sold for the account of Cybex) exceeds the number which can be sold in such offering within a price range acceptable to the Initiating Holders, Cybex will include insuch registration, to the extent of the number which Cybex is so advised can be sold in such offering, (i) first, Registrable Securities requested to be included in such registration by the holder or holders of Registrable Securities, prorata among such holders requesting such registration on the basis of the number of such securities requested to be included by such holders, (ii) second, all shares proposed to be included by Cybex in such registration and (iii) third, allshares other than Registrable Shares (any such shares with respect to any registration, “Other Shares”) requested to be included in such registration by the holder or holders thereof. 

 

d. Section 3.2. Incidental Registration. 

 

e. 

 

(a) If Cybex at any time proposes to register any of its securities under the Securities Act (other than (x) by aregistration on Form S-4 or S-8 or any successor or similar forms or (y) pursuant to Section 3.1 or (z) pursuant to Section 3.3) whether for its own account or for the account of the holder or holders of shares other than Registrable Shares (anysuch shares with respect to any registration, “Other Shares”) requested to be included in such registration by the holder or holders thereof, it will each such time give prompt written notice to all Warrant Securityholders of its intentionto do so and of such holders’ rights under this Section 3.2. Upon the written request of any such holder made within 20 days after the receipt of any such notice (which request shall specify the Registrable Securities intended to be disposed ofby such holder and the intended method of disposition thereof), Cybex will use its reasonable best efforts to effect the registration under the Securities Act of all of the Registrable Securities which Cybex has been so requested to register by theholders thereof, to the extent requisite to permit the 

 

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disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, by inclusion of suchRegistrable Securities in the registration statement which covers the securities which Cybex proposes to register; provided that if, at any time after giving written notice of its intention to register any securities and prior to theeffective date of the registration statement filed in connection with such registration, Cybex shall determine for any reason either not to register or to delay registration of such securities, Cybex may, at its election, give written notice of suchdetermination to each holder of Registrable Securities and, thereupon, (i) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not fromits obligation to pay the Registration Expenses in connection therewith), without prejudice, however, to the rights of any Warrant Securityholder or Warrant Securityholders entitled to do so to request that such registration be effected as aregistration under Section 3.1**,** and (ii) in the case of a determination to delay registering, shall be permitted to delay registering any Registrable Securities, for the same period as the delay in registering such other securities.******No registration effected under this Section 3.2 shall relieve Cybex of its obligation to effect any registration upon request under Sections 3.1 or 3.3, nor shall any such registration hereunder be deemed to have been effected pursuantto Sections 3.1 or 3.3. Cybex will pay all Registration Expenses in connection with each registration of Registrable Securities pursuant to this Section 3.2. 

 

(b) If Cybex at any time proposes to register any of its securities under the Securities Act as contemplated by Section 3.2 and such securities are to bedistributed by or through one or more underwriters, Cybex will, if requested by any holder of Registrable Securities as provided in this Section 3.2, use its best efforts to arrange for such underwriters to include all the Registrable Securities tobe offered and sold by such holder among the securities to be distributed by such underwriters, provided that if the managing underwriter of such underwritten offering shall inform Cybex and holders of the Registrable Securities requestingsuch registration and all other holders of any other shares of Common Stock which shall have exercised, in respect of such underwritten offering, registration rights comparable to the rights under this Section 3.2 by letter of its belief thatinclusion in such distribution of all or a specified number of such securities proposed to be distributed by such underwriters would interfere with the successful marketing of the securities being distributed by such underwriters (such letter tostate the basis of such belief and the approximate number of such Registrable Securities and such Other Shares proposed so to be registered which may be distributed without such effect), then Cybex may, upon written notice to all holders of suchRegistrable Securities and holders of such Other Shares, reduce prorata (if and to be extent stated by such managing underwriter to be necessary to eliminate such effect) the number of such Registrable Securities and Other Shares theregistration of which shall have been requested by each holder thereof so that the resultant aggregate number of such Registrable Securities and Other Shares so included in such registration, together with the number of securities to be included insuch registration for the account of Cybex, shall be equal to the number of shares stated in such managing underwriter’s letter. 

 

f. Section 3.3. Short-Form Registration on Form S-3. 

 

g. 

 

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In addition to the rights provided the holders of Registrable Securities in Sections 3.1 and 3.2 above,if the registration of Registrable Securities under the Securities Act can be effected on Form S-3 (or any similar or successor form promulgated by the Commission), Cybex will so notify each holder of Registrable Securities, including each holderwho has a right to acquire Registrable Securities, and then will, as expeditiously as possible, use its reasonable best efforts to effect qualification and registration under the Securities Act on said Form S-3 of all or such portion of theRegistrable Securities as the holder or holders shall specify, such specification to be made by any such holder within 20 days after the receipt of such notice; provided, however, that the market value of the Registrable Securities to be sold in anysuch registration shall be estimated to be at least **[$200,000]** at the time of filing such registration statement; and provided further, that Cybex shall not be required to effect more than two (2) such registrations pursuant to this Section3.3 in any twelve-month period; provided that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the registration statement filed in connection with such registration,Cybex shall determine for any reason either not to register or to delay registration of such securities, Cybex may, at its election, give written notice of such determination to each holder of Registrable Securities and, thereupon, (i) in the caseof a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses in connection therewith), withoutprejudice, however, to the rights of any Warrant Securityholder or Warrant Securityholders entitled to do so to request that such registration be effected as a registration under Section 3.1**,** and (ii) in the case of a determination to delayregistering, shall be permitted to delay registering any Registrable Securities, for the same period as the delay in registering such other securities. ******No registration effected under this Section 3.3 shall relieve Cybex of itsobligation to effect any registration upon request under Sections 3.1 or 3.2, nor shall any such registration hereunder be deemed to have been effected pursuant to Sections 3.1 or 3.2.. Cybex will pay all Registration Expenses in connection with anyregistration pursuant to this Section 3.3. 

 

h. Section 3.4.Registration Procedures. 

 

i. 

 

(a) If and whenever Cybex is required to effect the registration of anyRegistrable Securities under the Securities Act as provided in Sections 3.1, 3.2 and 3.3, Cybex shall, as expeditiously as possible: 

 

(i) prepare and (within 30 days after the end of the period within which requests for registration may be given to Cybex or in any eventas soon thereafter as possible; provided that, in the case of a registration pursuant to Section 3.1, such filing to be made within 30 days after the initial request of an Initiating Holder of Registrable Securities or in any event as soonthereafter as possible; provided further that, in the case of a registration pursuant to Section 3.3, such filing to be made within 10 business days after the request of an Initiating Holder of Registrable Securities or in any event as soonthereafter as possible) file with the Commission the requisite registration statement to effect such registration (including such audited financial statements as may be required by the Securities Act) and thereafter use its best efforts to causesuch registration statement 

 

12 

to become and remain effective; provided that Cybex may discontinue any registration of its securities which are not Registrable Securities at anytime prior to the effective date of the registration statement relating thereto; providedfurther that before filing such registration statement or any amendments thereto, Cybex will furnish to the counsel selected by the holders ofRegistrable Securities which are to be included in such registration copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel; 

 

(ii) prepare and file with the Commission such amendments and supplements to such registration statement andthe prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registrationstatement until the expiration of ninety (90) days after such registration statement becomes effective;****

 

(iii) furnish to each seller of Registrable Securities covered by such registration statement and each underwriter, if any, of thesecurities being sold by such seller such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in suchregistration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, assuch seller and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller; 

 

(iv) use its best efforts to register or qualify all Registrable Securities and other securities covered bysuch registration statement under blue sky or similar laws of such jurisdictions as any seller thereof and any underwriter of the securities being sold by such seller shall reasonably request, to keep such registrations or qualifications in effectfor so long as such registration statement remains in effect, and take any other action which may be reasonably necessary or advisable to enable such seller and underwriter to consummate the disposition in such jurisdictions of the securities ownedby such seller, except that Cybex shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this subdivision (iv) be obligated to beso qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction; 

 

(v) use its best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved bysuch other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities; 

 

(vi) furnish to each seller of Registrable Securities a signed counterpart, addressed to such seller and theunderwriters, if any, of 

 

13 

(A) an opinion of counsel for Cybex, dated the effective date of such registrationstatement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such seller, and 

 

(B) a “comfort” letter, dated the effective dateof such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have certified Cybex’financial statements included in such registration statement, 

 

covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants’ letter, with respect to events subsequent to the date of such financialstatements, as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to the underwriters in underwritten public offerings of securities to the extent that Cybex is required to deliver or cause thedelivery of such opinion or “comfort” letters to the underwriters in an underwritten public offering of Registrable Securities; 

 

(vii) notify the holders of Registrable Securities and the managing underwriter or underwriters, if any, promptly and confirm such advicein writing promptly thereafter: 

 

(A) when theregistration statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement has been filed, and, with respect to the registration statement or any post-effective amendment thereto,when the same has become effective; 

 

(B) ofany request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information; 

 

(C) of the issuance by the Commission of any stop order suspending the effectiveness of the registration or the initiation of anyproceedings by any Person for that purpose; and 

 

(D) of the receipt by Cybex of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of anyproceeding for such purpose; 

 

(viii) notifyeach seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon Cybex’ discovery that, or upon the happening of any event asa result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required 

 

14 

to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and at the request of anysuch seller promptly prepare and furnish to such seller and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of suchsecurities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances thenexisting; 

 

(ix) make every reasonable effortto obtain the withdrawal of any order suspending the effectiveness of the registration statement at the earliest possible moment; 

 

(x) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and make available to itssecurity holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar quarter after the effective date of such registrationstatement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act; 

 

******(xi) make available for inspection by a representative of the holders of Registrable Securities participating in theoffering, any underwriter participating in any disposition pursuant to the registration and any attorney or accountant retained by such selling holders or underwriter (each, an “Inspector”), all financial and other records, pertinentcorporate documents and properties of Cybex (the “Records”), and cause Cybex’ officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such registration; providedthat Cybex shall not be required to comply with this subdivision (xi) if there is a reasonable likelihood, in the judgment of Cybex, that such delivery could result in the loss of any attorney-client privilege related thereto; and providedfurther that Records which Cybex determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors (other than to any holder of Registrable Securities participating inthe offering) unless (x) such Records have become generally available to the public or (y) the disclosure of such Records may be necessary or appropriate (A) to comply with any law, rule, regulation or order applicable to any such Inspectors orholder of Registrable Securities, (B) in response to any subpoena or other legal process or (C) in connection with any litigation to which such Inspectors or any holder of Registrable Securities is a party (provided that Cybex is providedwith reasonable notice of such proposed disclosure and a reasonable opportunity to seek a protective order or other appropriate remedy with respect to such Records); 

 

(xii) provide and cause to be maintained a transfer agent and registrar for all Registrable Securitiescovered by such registration statement from and after a date not later than the effective date of such Registration Statement; and 

 

15 

(xiii) use its best efforts to comply with all applicable rules and regulations of theAmerican Stock Exchange and to maintain its right to list securities on such exchange. 

 

Cybex may require each seller of Registrable Securities as to which any registration is being effected to furnish Cybex such information regarding such seller and the distribution of such securities as Cybex may from time to time reasonablyrequest in writing for purposes of preparing the relevant registration statement and amendments and supplements thereto. 

 

(b) Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from Cybex of theoccurrence of any event of the kind described in subdivision (viii) of Section 3.3(a), such holder will forthwith discontinue such holder’s disposition of Registrable Securities pursuant to the registration statement relating to suchRegistrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by subdivision (viii) of Section 3.3(a). In the event Cybex shall give any such notice, the periods specified in subdivision(ii) of Section 3.3(a) shall be extended by the length of the period from and including the date when each seller of any Registrable Securities covered by such registration statement shall have received such notice to the date on which each suchseller has received the copies of the supplemented or amended prospectus contemplated by subdivision (viii) of Section 3.3(a). 

 

(c) If any such registration or comparable statement refers to any holder of Registrable Securities by name or otherwise as the holder of any securitiesof Cybex, then such holder shall have the right to require, in the event that such reference to such holder by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference tosuch holder. 

 

(d) Cybex shall not be obligated to effect theregistration of Registrable Securities pursuant to Sections 3.1, 3.2 and 3.3 unless all holders of Registrable Securities being registered consent to reasonable conditions imposed by Cybex as Cybex shall determine with the advice of counsel,including, without limitation: 

 

(i) conditions requiring suchholder to comply with all prospectus delivery requirements of the Securities Act and with all anti-stabilization, anti-manipulation and similar provisions of Section 10 of the Exchange Act and any rules issued thereunder by the Commission, and tofurnish to the Company information about sales made in such public offering; 

 

(ii) conditions prohibiting such holders upon receipt of telegraphic or written notice from the Company (until further notice) from effecting sales of shares, such notice being given to permit the Company to corrector update a registration statement or prospectus; 

 

(iii)conditions requiring that at the end of the period during which the Company is obligated to keep the registration statement effective under Section 5, the holders of shares included in the registration statement shall discontinue sales of sharespursuant to 

 

16 

such registration statement upon receipt of notice form the Company of its intention to remove from registration the shares covered by such registrationstatement that remain unsold, and requiring such holders to notify the Company of the number of shares registered that remain unsold immediately upon receipt of notice from the Company; and 

 

j. Section 3.5. Underwritten Offerings. 

 

k. 

 

(a) If requested by the underwriters for any underwritten offering by holders of Registrable Securities pursuant to aregistration requested under Section 3.1, Cybex will enter into an underwriting agreement with such underwriters for such offering, such agreement to be satisfactory in substance and form to Cybex, each such holder and the underwriters, and tocontain such representations and warranties by Cybex and such other terms as are generally prevailing in agreements of such type, including, without limitation, indemnities to the effect and to the extent provided in Section 3.5. The holders of theRegistrable Securities will cooperate with Cybex in the negotiation of the underwriting agreement. 

 

(b) Each holder of Registrable Securities agrees by acquisition of such Registrable Securities not to sell, make any short sale of, loan, grant any optionfor the purchase of, effect any public sale or distribution of or otherwise dispose of any equity securities of Cybex, during the ten days prior to and the 90 days after the effective date of any underwritten registration pursuant to Section 3.1,3.2 or 3.3 except as part of such underwritten registration, whether or not such holder participates in such registration, and except as otherwise permitted by the managing underwriter of such underwriting (if any). Each holder of RegistrableSecurities agrees that Cybex may instruct its transfer agent to place stop transfer notations in its records to enforce this Section 3.4(b).****

 

(c) No Person may participate in any underwritten offering hereunder unless such Person (i) agrees to sell such Person’s securities on the basisprovided in any underwriting arrangements approved, subject to the terms and conditions hereof, by the Person or a majority of the Persons entitled to approve such arrangements and (ii) completes and executes all agreements, questionnaires,indemnities and other documents (other than powers of attorney) required under the terms of such underwriting arrangements. 

 

l. Section 3.6. Current Public Information. 

 

m. 

 

Cybex will timely file all reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by theCommission thereunder, and will take such further action as any holder or holders of Registrable Securities may reasonably request, all to the extent required to enable such holders to sell Registrable Securities pursuant to Rule 144 adopted by theCommission under the Securities Act (as such rule may be amended from time to time) or any similar rule or regulation hereafter adopted by the Commission and pursuant to Form S-3 or any similar short form registration statement. Upon writtenrequest, the Company 

 

17 

will deliver to such holders a written statement as to whether it has complied with such requirements. 

 

n. Section 3.7. Indemnification. 

 

o. 

 

(a) Cybex agrees to indemnify and hold harmless each holder of Registrable Securities whose Registrable Securities arecovered by any registration statement, its directors, officers, affiliates and partners, and each other Person, if any, who controls such holder within the meaning of the Securities Act (and any broker or dealer through whom such shares may besold), against any losses, claims, damages, expenses or liabilities, joint or several, to which any such indemnified party may become subject under the Securities Act or under any other statute or at common law or otherwise, insofar as such losses,claims, damages, expenses or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in anyregistration statement under which such securities were registered under the Securities Act or any filing with any State securities commission or agency, any preliminary prospectus, final prospectus or summary prospectus contained therein, or anyamendment or supplement thereto, or 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, or any violation by Cybex of any rule or regulationpromulgated under the Securities Act or any State securities laws or regulations applicable to Cybex and relating to action or inaction required of Cybex in connection with such registration, and Cybex will reimburse each such indemnified party forany legal or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, liability, action or proceeding, whether or not resulting in any liability; provided that Cybex shall not beliable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omissionmade in such registration statement or such State securities commission or agency filing, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written informationfurnished to Cybex by or on behalf of such holder or controlling person specifically for use in the preparation thereof. In addition, Cybex shall indemnify any underwriter of such offering and each other Person, if any, who controls any suchunderwriter within the meaning of the Securities Act in substantially the same manner and to substantially the same extent as the indemnity herein provided to each Indemnified Party. Such indemnity shall remain in full force and effect regardless ofany investigation made by or on behalf of such holder or any such director, officer, affiliate, partner, underwriter or controlling person and shall survive the transfer of such securities by such holder. 

 

(b) Each prospective seller of Registrable Securities hereunder shallindemnify and hold harmless (in the same manner and to the same extent as set forth in subdivision (a) of this Section 3.7) Cybex, each director of Cybex, each officer of Cybex who has signed or otherwise participated in the preparation of theregistration statement, and each other Person, if any, who controls Cybex within the meaning of the Securities Act, with respect to any untrue statement or alleged untrue statement in, or omission or alleged omission to state a material factrequired to be 

 

18 

stated therein or necessary in order to make the statements therein not misleading from, such registration statement, or filing with any State securitiescommission or agency, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereof, if such untrue statement or alleged untrue statement or omission or alleged omission was made inreliance upon and in conformity with written information furnished to Cybex by or on behalf of such seller specifically for use in the preparation of such registration statement, filing, preliminary prospectus, final prospectus, summary prospectus,amendment or supplement. Any such indemnity shall remain in full force and effect, regardless of any investigation made by or on behalf of Cybex or any such director, officer or controlling person and shall survive the transfer of such securities bysuch seller. The amount payable by any prospective seller of Registrable Security with respect to the indemnification set forth in this subsection (b) in connection with any offering of securities will not exceed the amount of net proceeds receivedby such prospective seller pursuant to such offering. 

 

(c)Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in the preceding subdivisions of this Section 3.7, such indemnified party will, if a claim in respect thereof isto be made against an indemnifying party, give written notice to the latter of the commencement of such action; provided that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party ofits obligations under the preceding subdivisions of this Section 3.7, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, unless insuch indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, the indemnifying party shall be entitled to participate in and to assume the defensethereof, jointly with any other indemnifying party similarly notified, to the extent that the indemnifying party may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to suchindemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof. Noindemnifying party shall, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement of any such action which does not include as an unconditional term thereof the giving by the claimant or plaintiffto such indemnified party of a release from all liability in respect to such claim or litigation. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action the defense of which has been assumed by anindemnifying party without the consent of such indemnifying party. 

 

(d) If the indemnification provided for in the preceding subdivisions of this Section 3.7 is unavailable to an indemnified party in respect of any expense, loss, claim, damage or liability referred to therein, then each 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 expense, loss, claim, damage or liability (i) in such proportion as is appropriate to reflect the relativebenefits received by Cybex on the one hand and the holder or underwriter, as the case may be, on the other from the distribution of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law,in such proportion as 

 

19 

is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of Cybex on the one hand and of theholder or underwriter, as the case may be, on the other in connection with the statements or omissions which resulted in such expense, loss, damage or liability, as well as any other relevant equitable considerations. The relative benefits receivedby Cybex on the one hand and the holder or underwriter, as the case may be, on the other in connection with the distribution of the Registrable Securities shall be deemed to be in the same proportion as the total net proceeds received by Cybex fromthe initial sale of the Registrable Securities by Cybex to the purchaser bear to the gain realized by the selling holder or the underwriting discounts and commissions received by the underwriter, as the case may be. The relative fault of Cybex onthe one hand and of the holder or underwriter, as the case may be, on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission to state a material fact relatesto information supplied by Cybex, by the holder or by the underwriter and parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided that the foregoingcontribution agreement shall not inure to the benefit of any indemnified party if indemnification would be unavailable to such indemnified party by reason of the proviso contained in the first sentence of subdivision (a) of this Section 3.7, and inno event shall the obligation of any indemnifying party to contribute under this subdivision (d) exceed the amount that such indemnifying party would have been obligated to pay by way of indemnification if the indemnification provided for undersubdivisions (a) or (b) of this Section 3.7 had been available under the circumstances. 

 

Cybex and the holders of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this subdivision (d) were determined by prorata allocation (even if the holdersand any underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph and subdivision (c) of this Section3.7. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legalor other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. 

 

Notwithstanding the provisions of this subdivision (d), no holder of Registrable Securities or underwriter shall be required to contribute any amount inexcess of the amount by which (i) in the case of any such holder, the net proceeds received by such holder from the sale of Registrable Securities or (ii) in the case of an underwriter, the total price at which the Registrable Securities purchasedby it and distributed to the public were offered to the public exceeds, in any such case, the amount of any damages that such holder or underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or 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. 

 

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6. ARTICLE IV 

 

MISCELLANEOUS 

 

7. 

 

a. Section 4.1. Notices. 

 

b. 

 

All notices and other communications provided for hereunder shall be dated and in writing and shall be deemed to have been given (i) if given by telecopy,when such telecopy is transmitted to the telecopy number specified in this Section and telephonic confirmation of receipt thereof is obtained or (ii) if given by mail, prepaid overnight courier or any other means, when received at the addressspecified in this Section or when delivery at such address is refused. Such notices shall be addressed to the appropriate party to the attention of the person who executed this Agreement at the address or telecopy number set forth under suchparty’s signature below (or to the attention of such other person or to such other address or telecopy number as such party shall have furnished to each other party in accordance with this Section 4.1). 

 

c. Section 4.2. Binding Nature of Agreement. 

 

d. 

 

This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto or theirsuccessors in interest, except as expressly otherwise provided herein. 

 

e. Section 4.3. Descriptive Headings. 

 

f.

 

The descriptive headings of the several sections andparagraphs of this Agreement are inserted for reference only and shall not limit or otherwise affect the meaning hereof. 

 

g. Section 4.4. Specific Performance. 

 

h. 

 

Without limiting the rights of each party hereto to pursue all other legal and equitable rights available to such party for the other parties’failure to perform their obligations under this Agreement, the parties hereto acknowledge and agree that the remedy at law for any failure to perform their obligations hereunder would be inadequate and that each of them, respectively, shall beentitled to specific performance, injunctive relief or other equitable remedies in the event of any such failure. 

 

i. Section 4.5. GOVERNING LAW. 

 

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j. 

 

**THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEWYORK WITHOUT REGARD TO CHOICE OF LAW RULES. EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY FEDERAL COURT OF THE SOUTHERN DISTRICT OF NEW YORK OR ANY STATE COURT LOCATED IN NEW YORK COUNTY, STATE OF NEW YORK FORPURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH SUCH PARTY MAY NOW ORHEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO IRREVOCABLY CONSENTS TOSERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 6.1. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.**

 

k. Section 4.6. Counterparts. 

 

l. 

 

This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original, butall such counterparts shall together constitute one and the same instrument. 

 

m. Section 4.7. Severability. 

 

n. 

 

In the event that any one or more of theprovisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of theremaining provisions contained herein shall not be in any way impaired thereby, it being intended that all of the rights and privileges of the parties hereto shall be enforceable to the fullest extent permitted by law. 

 

o. Section 4.8. Entire Agreement. 

 

p. 

 

This Agreement is intended by the parties hereto as a final and complete expression of their agreement and understanding inrespect to the subject matter contained herein. This 

 

22 

Agreement supersedes all prior agreement and understandings, written or oral, between the parties with respect to such subject matter. 

 

q. Section 4.9. Amendment to Waiver. 

 

r. 

 

Any provision of this Agreement may be amended if, but only if, such amendment is in writing and is signed by Cybex and theWarrantholders. Any provision may be waived if, but only if, such waiver is in writing and is signed by the party or parties waiving such provision and for whose benefit such provision is intended. 

 

s. Section 4.10. No Third Party Beneficiaries. 

 

t. 

 

Nothing in this Agreement shall convey any rights upon any person or entity which is not a party or an assignee of a partyto this Agreement. 

 

u. Section 4.11. Transferability ofRegistration Rights. 

 

For all purposes of this Agreement,the holders of Registrable Securities shall include not only the Warrantholder but also any assignee or transferee of the Warrantholder. The Warrantholder may assign or transfer its rights under this Agreement to any Person to whom the Warrantholdertransfers any Registrable Shares, provided, however, that such assignee or transferee agrees in writing to be bound by all of the provision of this Agreement 

 

23 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered as of the datefirst above written. 

 
**CYBEX INTERNATIONAL, INC.**
By: /s/ Arthur W. Hicks, Jr.

Name: Arthur W. Hicks, Jr.

Title: Chief Financial Officer

Address:
 
10 Trotter Drive
  
Medway, MA

Telecopy:
 
508-533-5799

Telephone:
 
508-533-4300
**UM HOLDINGS LTD.**
By: /s/ Arthur W. Hicks, Jr.

Name: Arthur W. Hicks, Jr.

Title: Vice-President

Address:
 
56 Haddon Avenue
  
Haddonfield, NJ 08033

Telecopy:
 
856-354-2216

Telephone:
 
856-354-2200

**THE CIT GROUP / BUSINESS CREDIT, INC.**
By: /s/ Richard S. Cassels

Name: Richard S. Cassels

Title: Senior Vice President

Address:
 
The CIT Group / Business Credit, Inc.
  
Two Wachovia Center, 23rd Floor
  
301 S. Tryon Street
  
Charlotte, NC 28202
  
Attn: Regional Credit Manager

Telecopy:
 
704-339-2208

Telephone:
 
704-339-3044

 

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