**Exhibit 10.7**

 

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”), HILCO CAPITAL LP (“HILCO”) (Hilco 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 thestockholders 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 Signing Stockholders (defined below) are the beneficial owners of 2,793,256 shares of Voting Common Stock, thereare outstanding options to purchase 340,000 shares of Voting Common Stock and there are outstanding warrants to purchase 704,331 (of which 176,619 were issued to The CIT Group/Business Credit, Inc.) shares of Voting Common Stock, and Hilco purchasedand is the beneficial owner of the Warrants (as defined herein) to purchase 189,640 shares of Voting Common Stock; and 

 

WHEREAS, Cybex wishes to provide to the Warrantholders and the holders of the Warrant Shares the rights described herein; 

 

NOW THEREFORE the parties hereto agree as follows: 

 

1. ARTICLE I 

 

DEFINITIONS 

 

2. 

 

a. Section 1.1. Definitions. 

 

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

 

“Affiliate” means, with respect to any Person, any of (i) adirector 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 orindirectly, 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 common controlwith”), 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 the ownership of voting securities or bycontract or agency or otherwise. 

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

 

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

 

“Common Stock” means the Voting Common Stock. 

 

“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) allobligations of such Person to 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 purchasesecurities (or other property) 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 ofamounts paid under a letter 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 Lienon any asset of such Person, 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. 

 

“Financing Agreement” means the Financing Agreement dated as ofJuly 16, 2003, between Cybex and Hilco, as amended or otherwise modified from time to time. 

 

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

 

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

 

“Other Shares” has the meaning set forth in Section3.1. 

 

“Person” means a corporation, an association, apartnership, a trust, a limited liability company, 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 publicthrough a 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 Warrant Shares until the date (if any) on which such WarrantShares shall have been 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 ofthem under the Securities Act or any similar state law then in force. 

 

“Registration Expenses” 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 complyingwith securities or blue sky laws, (iii) all word processing, duplicating and printing expenses, (iv) all messenger and delivery expenses, (v) the fees and disbursements of counsel for Cybex and of its independent public accountants, including theexpenses of any special 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 than50% of the Registrable 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 ofunderwriters customarily 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, suchexpenses shall 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 orWarrant Shares, if such holder is effectively restricted or prohibited from holding, exercising or transferring, in whole or in part, the Warrants or Warrant Shares by reason of any Regulatory Requirement, including without limitation if such holderis 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 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 anyUnited 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 modification on or after the date hereof of any agreement orcommitment 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 Warrant Shares and any securities obtained upon exchange for or upon exercise or transfer of oras a distribution on Warrants, the Warrant 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) beenotherwise 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 them underthe 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 its transferagent, 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 regulations of 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 who are party heretoother than the Warrantholders. 

 

“Stockholders” meansthe 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 persons performing similarfunctions are at the time directly or indirectly owned by Cybex. 

 

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

 

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

 

“Warrantholders” has the meaning set forth in the introductoryparagraph. 

“Warrants” means the Warrant or Warrants originally issued to HILCO, as such Warrants may betransferred or otherwise assigned, but only to the extent not theretofore exercised, redeemed or expired in accordance with their respective terms. 

 

“Warrant Shares” means (i) any shares of Voting Common Stock or other securities issued or issuable upon the exercise of any Warrants and (ii)any securities issued or issuable with respect to any of such shares or other securities referred to in clause (i) upon the conversion or exchange 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 Warrant Shares when such securities shall have (x) been disposed of pursuant to aPublic Sale or (y) ceased to be outstanding. 

 

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

 

3. ARTICLE II 

 

TRANSFER OF SHARES; PAYMENTS TOWARRANT 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 SUCH REGISTRATION IS AVAILABLE. THESECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO AND HAVE THE BENEFIT OF A WARRANTHOLDERS RIGHTS AGREEMENT DATED AS OF JULY 16, 2003 AMONG CYBEX INTERNATIONAL, INC. AND THE WARRANTHOLDERS AND STOCKHOLDER PARTIES THERETO, COPIESOF 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 other than pursuant to a Public Sale may be made to any Person unless such Person shall have agreed in writing that such Person, as aholder of Restricted Securities, and the Restricted Securities it acquires shall be bound by and be entitled to the benefits of all the provisions of this Agreement applicable to such Restricted Securities (and upon such agreement such Person shallbe entitled to such benefits). Any purported transfer of Restricted Securities without compliance with the applicable provisions of this Agreement shall be void and of no effect, and the purported transferee shall have no rights as a Warrantholderor Shareholder (as applicable) or under this Agreement. In the event of such non-complying transfer, Cybex shall not transfer any such Restricted Securities on its books or recognize the purported transferee as a shareholder or warrantholder, as thecase 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 with federal and all applicable statesecurities 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 Restricted Securities have been transferred by aholder 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 of any holder of Restricted Securities tosuch holder’s executors, administrators or testamentary trustees, (iii) any transfer to a trust the beneficiaries of which include only the holder of such Restricted Securities or such holder’s spouse, parents, siblings or descendants or(iv) any transfer by the holder in connection with the grant of a participation interest in the Financing Agreement (any transferee referred to in (i), (ii), (iii) or (iv) above being referred to herein as a “Permitted Transferee”);provided that no such transfer shall be made to any Permitted Transferee unless such Permitted Transferee shall have agreed in writing that such Permitted Transferee, as a Stockholder or Warrantholder (as the case may be), and the Warrants orWarrant Shares it acquires shall be bound by and be entitled to the benefits of all the provisions of this Agreement applicable to Warrants or Warrant Shares (as the case may be), and upon such agreement such Permitted Transferee shall be entitledto such benefits. 

 

g. Section 2.4. Tag-along Rights.

h. 

 

If a Signing Stockholder or any of its Affiliates (any such Person for purposes of this Section 2.4, the “Transferor”) wishes to transfer sharesof 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 series of transactions, the Transferor shall firstgive 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) the number of shares of Common Stock that the Transfereeproposes 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 proposed transfer, (iv) an estimate, in the Transferor’sreasonable 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 the Transferee of any shares of Common Stock owned by theTransferor and for the same per share consideration, that number of Warrant Shares (or if such number is not an integral number, the next integral number which is greater than such number) of each Warrant Securityholder which shall be the product of(x) the aggregate number of Warrant Shares either then owned, or issuable upon exercise of Warrants then owned, by such Warrant Securityholder and (y) a fraction, the numerator of which shall be the number of shares of Common Stock indicated in theTransfer 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 and its Affiliates plus (B) the total number of Warrant Shareseither 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 the Transfer Notice is given, to accept such offer in whole or inpart, 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 of shares 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 such 15-day period or (y) the acceptance or rejection by each WarrantSecurityholder 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 to the Transferee. Thereafter, for a period of 90 days after theprohibition 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 Notice the shares of Common Stock stated in the Transfer Notice assubject 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 as calculated above from those Warrant Securityholders who have acceptedthe 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 its Affiliates or between Affiliates of the Transferor. 

 

i. Section 2. 5. Restrictions on Transfer by Regulated Holders.

 

j. 

(a) Notwithstanding anything else set forth herein to the contrary, in the event of any reasonabledetermination in good faith by any Regulated Holder that, by reason of any Regulatory Requirement, such Regulated Holder is effectively restricted or prohibited from holding, exercising or transferring (as the case may be) any Warrant or WarrantShares (or any portion thereof), Cybex shall use reasonable good faith efforts 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) suchWarrant or Warrant Shares (or any portion thereof) in such manner as is 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 ofany reasonable determination by it hereunder and the transfer or other 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 permitsuch Regulated Holder to hold, exercise or transfer such Warrant or Warrant Shares in any other manner, the foregoing proviso shall be deemed modified to permit the holding, exercise or transfer of such Warrant or Warrant Shares in such othermanner. 

 

(b) Nothing in this Agreement (including withoutlimitation Section 2.4) shall require any Regulated Holder to make a transfer of Warrants or Warrant Shares in a manner not permitted by Section 2.2(a) (an “Impermissible Transfer”). If any provision of this Agreement (including withoutlimitation 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 Warrant Shares in a manner permitted by Section 2.2(a) (a “PermissibleTransfer”), then such Regulated 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 ortimes when Cybex shall not then be eligible to register 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 requestof the holder or holders of fifty percent (50%) of all outstanding Warrant Shares and Warrants (such majority determined, for purposes of this Section 3.1, by calculating the number of Warrant 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’ Registrable Securities and specifying the intended method of disposition thereof, Cybex willpromptly give written notice of such requested registration to all holders of Warrants and Registrable Securities, and thereupon Cybex will use its reasonable best efforts to effect the registration under the Securities Act of: 

 

(i) the Registrable Securities which Cybex has been sorequested 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 which shall have made a written request to Cybex for registration thereof within 20days 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 to register in connection with the offering of Registrable Securities pursuant tothis 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 as possible , but in no event later than 120 days from the date of such request, ofthe 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 pursuant to thisSection 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 Securities requested to be registered by such Initiating Holders aresold 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 registration which does not become effective after Cybex has filed a registration statement with respect thereto solely by reason of the refusal toproceed by the Initiating Holders (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 Cybex at the request of the Initiating Holders unless theInitiating 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 stop order, injunction or other order or requirement ofthe 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 closing specified in the purchase agreement or underwritingagreement 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 an underwritten offering, the underwriter orunderwriters 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 reasonably acceptable to Cybex. 

 

(f) If a requested registration pursuant to this Section 3.1 involves anunderwritten 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 securities requested to be included in suchregistration (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 in such registration, to the extentof 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 holdersrequesting 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, all shares other than RegistrableShares (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 a registration on Form S-4 or S-8 or anysuccessor 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 (any such shares with respect to anyregistration, “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 intention to do so and of suchholders’ 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 Securitiesintended to be disposed of by 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 sorequested to register by the holders thereof, to the extent requisite to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, by inclusion of such RegistrableSecurities 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 the effective date ofthe 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 toeach 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 from its obligation topay the Registration Expenses in connection therewith), without prejudice, however, to the rights of any Warrant Securityholder entitled to do so to request that such registration be effected as a registration under Section 3.1**,** and (ii) inthe 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, without prejudice, however, to the rights of any WarrantSecurityholder entitled to do so to request that such registration be effected as a registration under Section 3.1. ******No registration effected under this Section 3.2 shall relieve Cybex of its obligation to effect any registration uponrequest under Sections 3.1 or 3.3, nor shall any such registration hereunder be deemed to have been effected pursuant to Sections 3.1 or 3.3. Cybex will pay all Registration Expenses in connection with each registration of Registrable Securitiespursuant to this Section 3.2. 

 

(b) If Cybex at any timeproposes to register any of its securities under the Securities Act as contemplated by Section 3.2 and such securities are to be distributed by or through one or more underwriters, Cybex will, if requested by any holder of Registrable Securities asprovided in this Section 3.2, use its best efforts to arrange for such underwriters to include all the Registrable Securities to be offered and sold by such holder among the securities to be distributed by such underwriters, provided that ifthe managing underwriter of such underwritten offering shall inform Cybex and holders of the Registrable Securities requesting such registration and all other holders of any other shares of Common Stock which shall have exercised, in respect of suchunderwritten offering, registration rights comparable to the rights under this Section 3.2 by letter of its belief that inclusion in such distribution of all or a specified number of such securities proposed to be distributed by such underwriterswould interfere with the successful marketing of the securities being distributed by such underwriters (such letter to state the basis of such belief and the approximate number of such Registrable Securities and such Other Shares proposed so to beregistered which may be distributed without such effect), then Cybex may, upon written notice to all holders of such Registrable Securities and holders of such Other Shares, reduce prorata (if and to the extent stated by such managingunderwriter to be necessary to eliminate such effect) the number of such Registrable Securities and Other Shares the registration of which shall have been requested by each holder thereof so that the resultant aggregate number of such RegistrableSecurities and Other Shares so included in such registration, together with the number of 

securities to be included in such registration for the account of Cybex, shall be equal to the number of shares stated in such managing underwriter’sletter. 

 

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

 

Provided such form is available for registration, theCompany shall prepare, and, on or prior to 60 days after the Closing Date (as defined in the Financing Agreement), file with the SEC a Registration Statement or Registration Statements (as is necessary) on Form S-3, covering the resale of all of theRegistrable Securities, which Registration Statement(s) shall state that, in accordance with Rule 416 promulgated under the 1933 Act, such Registration Statement(s) also covers such indeterminate number of additional shares of Common Stock as maybecome issuable upon exercise of the Warrant to prevent dilution resulting from stock splits, stock dividends or similar transactions. Such Registration Statement shall initially register for resale 189,640 shares of Common Stock. Such registeredshares of Common Stock shall be allocated among the Warrant Securityholders pro rata based on the total number of Registrable Securities issued or issuable as of each date that a Registration Statement, as amended, relating to the resale of theRegistrable Securities is declared effective by the SEC. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC within 120 days after the Closing Date.; provided, however, that the market value of theRegistrable Securities to be sold in any such registration shall be estimated to be at least $100,000 at the time of filing such registration statement.******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. 

 

g. Section 3.4.Registration Procedures. 

 

h. 

 

(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 use its best efforts to: 

 

(i) meet the requirements for the use of Form S-3 for registration of the sale by the holders of Registrable Securities as soon asreasonably practicable (but in any event, within the 60th day following the Closing Date (as defined in theFinancing Agreement) and file all reports required to be filed by the Company with the SEC in a timely manner so as to obtain and maintain such eligibility for the use of Form S-3, and thereafter use its best efforts to cause such registrationstatement to become and remain effective]In the event that Form S-3 is not available for sale by the holders of Registrable Securities, then the Company, shall prepare and (as soon as practicable but in any event within 60 days after receipt of arequest for registration by Cybex pursuant to Sections 3.1 or 3.2); provided that Cybex may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registrationstatement relating thereto; providedfurther that before filing such registration statement 

or any amendments thereto, Cybex will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registrationcopies of all such documents proposed to be filed, which documents will be subject to the review of such counsel; 

 

(ii) in the case of a registration statement pursuant to Section 3.1 or 3.2, prepare and file with the Commission such amendments andsupplements to such registration statement and the 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 ofall securities covered by such registration statement 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) register or qualify all Registrable Securities and other securities covered by such registrationstatement 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 effect for so long as suchregistration 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 owned by 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 be so qualified, tosubject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction; 

 

(v) cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmentalagencies 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 the underwriters, if any, of

(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; 

 

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

 

(A) when the registration 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 registrationstatement or any post-effective amendment thereto, when the same has become effective; 

 

(B) of any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additionalinformation; 

 

(C) of the issuance by theCommission of any stop order suspending the effectiveness of the registration or the initiation of any proceedings 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 saleunder the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; 

 

(viii) notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating theretois required to be delivered under the Securities Act, upon Cybex’ discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statementof a material fact or omits to state any material fact required 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 any such seller promptly prepareand 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 such securities, such prospectusshall 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 then existing; 

 

(ix) make every reasonable effort to obtain the withdrawalof 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 based on advice from its legal counsel, that such delivery could result in the loss of any attorney-client privilegerelated 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 ofRegistrable Securities participating in the 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 orderapplicable to any such Inspectors or holder 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 provided with 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 agentand registrar for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such Registration Statement; and 

 

(xiii) use its best efforts to comply with all applicable rules and regulations of the American StockExchange 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 Cybexsuch information regarding such seller and the distribution of such securities as Cybex may from time to time reasonably request in writing for purposes of preparing the relevant registration statement and amendments and supplements thereto.

 

(b) Each holder of Registrable Securities agrees byacquisition of such Registrable Securities that, upon receipt of any notice from Cybex of the occurrence of any event of the kind described in subdivision (viii) of Section 3.4(a), such holder will forthwith discontinue such holder’sdisposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by subdivision (viii) ofSection 3.4(a). In the event Cybex shall give any such notice, the periods specified in subdivision (ii) of Section 3.4(a) shall be extended by the length of the period from and including the date when each seller of any Registrable Securitiescovered by such registration statement shall have received such notice to the date on which each such seller has received the copies of the supplemented or amended prospectus contemplated by subdivision (viii) of Section 3.4(a). 

 

(c) If any such registration or comparable statement refers to any holder ofRegistrable Securities by name or otherwise as the holder of any securities of 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 anysimilar federal statute then in force, the deletion of the reference to such holder. 

 

(d) Cybex shall not be obligated to include any Registrable Securities in a registration pursuant to Sections 3.1, 3.2 and 3.3 unless the holders thereof consent to reasonable conditions imposed by Cybex as Cybexshall determine with the advice of counsel are reasonably necessary or advisable to ensure compliance with Regulatory Requirements**,**and shall be limited to the following: 

 

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

 

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

 

(iii) conditions requiring that at the end of the period during which theCompany is obligated to keep the registration statement effective under Section 5, the holders of shares included in the registration statement shall discontinue sales of shares pursuant to such registration statement upon receipt of notice form theCompany of its intention to remove from registration the shares covered by such registration statement 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 theCompany. 

 

i. Section 3.5. Underwritten Offerings.

 

(a) If requested by the underwriters for any underwrittenoffering by holders of Registrable Securities pursuant to a registration 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 formto Cybex, each such holder and the underwriters, and to contain 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 tothe extent provided in Section 3.7. The holders of the Registrable Securities will reasonably 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 shortsale of, loan, grant any option for 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 underwrittenregistration pursuant to Section 3.1, 3.2 or 3.3 has become effective, 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 ofsuch underwriting (if any). Each holder of Registrable Securities 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 unlesssuch Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved, subject to the terms and conditions hereof, by the Person or a majority of the Persons entitled to approve sucharrangements 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. 

 

j. Section 3.6. Current Public Information. 

 

k. 

 

Cybex will timely file all reports required to be filed by it under the Securities Act and the Exchange Act and the rulesand regulations adopted by the Commission 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 Securitiespursuant to Rule 144 adopted by the Commission 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 formregistration statement. Upon written request, the Company will deliver to such holders a written statement as to whether it has complied with such requirements. 

 

l. Section 3.7. Indemnification. 

m. 

 

(a) Cybex agrees to indemnify and hold harmless each holder of Registrable Securities whose Registrable Securities are covered by any registrationstatement, 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 be sold), 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, expensesor 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 any registration statement under whichsuch 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 any amendment or supplement thereto, orany 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 regulation promulgated under the Securities Act orany 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 for any legal or any other expensesreasonably 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 be liable in any such case to the extentthat 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 omission made in such registration statementor 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 information furnished to Cybex by or on behalf ofsuch 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 such underwriter within the meaning of theSecurities 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 of any investigation made by or onbehalf 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 shall indemnify and hold harmless (in the same manner and tothe 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 the registration statement, and each other Person, if any, whocontrols 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 fact required to be stated therein or necessary in order to make thestatements therein not misleading from, such registration statement, or filing with any State securities commission or agency, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplementthereof, if such untrue statement or alleged untrue statement or omission or alleged 

omission was made in reliance upon and in conformity with written information furnished to Cybex by or on behalf of such seller specifically for use in thepreparation 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 behalfof Cybex or any such director, officer or controlling person and shall survive the transfer of such securities by such seller. The amount payable by any prospective seller of Registrable Security with respect to the indemnification set forth in thissubsection (b) in connection with any offering of securities will not exceed the amount of net proceeds received by 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 aclaim referred to in the preceding subdivisions of this Section 3.7, such indemnified party will, if a claim in respect thereof is to 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 of its obligations under the preceding subdivisions of this Section 3.7, except to the extent that the indemnifyingparty is actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified andindemnifying parties may exist in respect of such claim, the indemnifying party shall be entitled to participate in and to assume the defense thereof, jointly with any other indemnifying party similarly notified, to the extent that the indemnifyingparty may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable tosuch indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof. No indemnifying party shall, without the consent of the indemnified party, consent to entry of any judgment or enterinto any settlement of any such action which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. No indemnifiedparty shall consent to entry of any judgment or enter into any settlement of any such action the defense of which has been assumed by an indemnifying party without the consent of such indemnifying party. 

 

(d) If the indemnification provided for in the preceding subdivisions of thisSection 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 orpayable 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 relative benefits received by Cybex on the one hand and the holder or underwriter, as the casemay 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 is appropriate to reflect not only the relative benefitsreferred to in clause (i) above but also the relative fault of Cybex on the one hand and of the holder or underwriter, as the case may be, on the other in connection with the statements or omissions which resulted in such expense, loss, damage orliability, as well as any other relevant equitable considerations. The relative benefits 

received by 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 RegistrableSecurities shall be deemed to be in the same proportion as the total net proceeds received by Cybex from the initial sale of the Registrable Securities by Cybex to the purchaser bear to the gain realized by the selling holder or the underwritingdiscounts and commissions received by the underwriter, as the case may be. The relative fault of Cybex on the 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 relates to information supplied by Cybex, by the holder or by the underwriter and parties’ relative intent, knowledge, access to informationand opportunity to correct or prevent such statement or omission; provided that the foregoing contribution agreement shall not inure to the benefit of any indemnified party if indemnification would be unavailable to such indemnified party byreason of the proviso contained in the first sentence of subdivision (a) of this Section 3.7, and in no event shall the obligation of any indemnifying party to contribute under this subdivision (d) exceed the amount that such indemnifying partywould have been obligated to pay by way of indemnification if the indemnification provided for under subdivisions (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 bejust and equitable if contribution pursuant to this subdivision (d) were determined by prorata allocation (even if the holders and any underwriters were treated as one entity for such purpose) or by any other method of allocation thatdoes not take account of the equitable considerations referred to in the immediately preceding paragraph and subdivision (c) of this Section 3.7. The amount paid or payable by an indemnified party as a result of the losses, claims, damages andliabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating ordefending any such action or claim. 

 

Notwithstanding theprovisions of this subdivision (d), no holder of Registrable Securities or underwriter shall be required to contribute any amount in excess of the amount by which (i) in the case of any such holder, the net proceeds received by such holder from thesale of Registrable Securities or (ii) in the case of an underwriter, the total price at which the Registrable Securities purchased by it and distributed to the public were offered to the public exceeds, in any such case, the amount of any damagesthat 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) shallbe entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. 

 

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. 

 

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 THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF**

**MANHATTAN, FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIESHERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT INSUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 6.1. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THISAGREEMENT 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 ofcounterparts, each of which shall be deemed an original, but all 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 the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal orunenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be in any way impaired thereby, it being intended that allof 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 in respect to the subject mattercontained herein. This 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 issigned by Cybex and the Warrantholders. 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 

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, Massachusetts, 02053

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 Ave.
  
Haddonfield, NJ 08033

Telecopy:
 
(856) 354-2216

Telephone:
 
(856) 354-2200

**HILCO CAPITAL LP**

By: /s/ Eran Cohen

Name: Eran Cohen

Title: Vice-President

Address:
 
One Northbrook Place
  
5 Revere Drive, Suite 510
  
Northbrook, Illinois 60062

Attn:
 
Portfolio Administrator

Telecopy:
 
(847) 559-9330

Telephone:
 
(847) 559-9300