**Exhibit 4.1**

** **

**[EXECUTION COPY]**

 

 

 

**REGISTRATION RIGHTS AGREEMENT**

 

**By and Between**

 

**MAGNETEK, INC.**

 

**and**

 

**U.S. TRUST COMPANY, NATIONAL ASSOCIATION**

 

 

Dated as of June 26,2002

 

 

 

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**TABLE OF CONTENTS**

** **
| **SECTION 1.** | **DEFINITIONS**                                       |
|----------------|-------------------------------------------------------|
|           |                                                  |
| **SECTION 2.** | **REQUIRED REGISTRATION**                             |
| (a)            | Shelf Registration Rights                             |
| (b)            | Piggyback  Registration                               |
| (c)            | Duration  of Registration                             |
|           |                                                  |
| **SECTION 3.** | **LIMITATIONS ON TRANSFERS**                          |
|           |                                                  |
| **SECTION 4.** | **INTERRUPTIONS OF CONTINUOUS REGISTRATION**          |
| (a)            | Permitted  Interruptions                              |
| (b)            | Holdback  Agreements                                  |
| (c)            | Cessation  of Offers                                  |
|           |                                                  |
| **SECTION 5.** | **REGISTRATION PROCEDURES**                           |
| (a)            | State  Law Compliance                                 |
| (b)            | Underwritten  Offering                                |
| (c)            | Confidentiality                                       |
| (e)            | Information Regarding  Pension Plan                   |
|           |                                                  |
| **SECTION 6.** | **NEGOTIATED TRANSFERS**                              |
|           |                                                  |
| **SECTION 7.** | **EXPENSES OF REGISTRATION**                          |
|           |                                                  |
| **SECTION 8.** | **INDEMNIFICATION**                                   |
| (a)            | Indemnification by the  Company                       |
| (b)            | Indemnification  by Holders of Registrable Securities |
| (c)            | Delivery  of Prospectus                               |
| (d)            | Conduct of  Indemnification Proceedings               |
| (e)            | Contribution                                          |
|           |                                                  |
| **SECTION 9.** | **GENERAL PROVISIONS**                                |
| (a)            | Succession                                            |
| (b)            | Termination                                           |
| (c)            | Amendments  and Waivers                               |
| (d)            | Notice                                                |
| (e)            | Governing Law                                         |
| (f)            | Counterparts                                          |
| (g)            | Complete  Agreement                                   |
| (h)            | Headings; Interpretation                              |
| (i)            | Gender and  Number                                    |
| (j)            | No Third-Party  Beneficiaries                         |
| (k)            | Cooperation                                           |
| (l)            | Binding Effect, Assignment                            |

 

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# **REGISTRATIONRIGHTS AGREEMENT**

 

This REGISTRATION RIGHTSAGREEMENT is entered into as of June 26, 2002, by and between Magnetek,Inc., a Delaware corporation (the “Company”), and U.S. Trust Company,National Association, a national banking association, in its capacity as dulyappointed and acting investment manager (the “Manager”) of a segregatedaccount held in the trust (the “Trust”) created under the Magnetek, Inc.FlexCare Plus Retirement Pension Plan (the “Pension Plan,” which term,as used herein, shall include the Manager acting on behalf of the Pension Planand the Trust), for the account and on behalf of the Pension Plan (which shallthereby be deemed a party to this Agreement). Capitalized terms used and not otherwise defined herein shall have therespective meanings set forth in Section 1.

 

# **RECITALS:**

# ** **

WHEREAS, the Company hasagreed, subject to the satisfaction of certain regulatory and other conditions,to contribute 900,000 shares of Common Stock to the Trust; and

 

WHEREAS, such shares ofCommon Stock immediately following such contribution will be held in asegregated account in the Trust (the “Segregated Account”); and

 

WHEREAS, the Manager hasbeen appointed as a “fiduciary” of the Pension Plan, as defined inSection 3(21) of the Employee Retirement Income Security Act of 1974, asamended (“ERISA”), with the authority to act on behalf of the PensionPlan with respect to all assets held in the Segregated Account; and

 

WHEREAS, the Company hasagreed to grant the Manager certain registration rights with respect to sharesof Common Stock held in the Segregated Account, on the terms and subject to theconditions herein set forth; and

 

WHEREAS, the Manager hasfull power and authority to execute and deliver this Agreement for the accountand on behalf of the Pension Plan and to bind the Pension Plan.

 

NOW, THEREFORE, inconsideration of the mutual covenants and obligations set forth in thisAgreement, the receipt and sufficiency of which are hereby acknowledged, theparties hereto agree as follows:

 

# **AGREEMENT:**

# ** **

Section 1.               Definitions.

 

In addition to thoseterms that are defined in the preamble hereto, the following terms shall havethe following meanings as used in this Agreement:

 

“Agreement” meansthis Registration Rights Agreement.

 

“Board of Directors”means the Board of Directors of the Company and any authorized committeethereof.

 

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“Business Day”means any day on which the New York Stock Exchange is open for trading.

 

“Code” means theInternal Revenue Code of 1986, as amended.

 

“Common Stock”means the Company’s Common Stock, par value $.01 per share.

 

“Company” isdefined in the preamble.

 

“ERISA” is definedin the recitals.

 

“Exchange Act”means the Securities Exchange Act of 1934, as amended.

 

“Form S-3” meansForm S-3 as promulgated by the SEC or any successor form that is substantiallysimilar thereto.

 

“Interruption Notice”is defined in Section 4(a).

 

“Issuer” means,initially, the Company, and thereafter, each successor issuer as described in Section 9(a).

 

“Negotiated Transfer”is defined in Section 6(a).

 

“PermittedInterruption” is defined in Section 4(a).

 

“Person” means anindividual, partnership, corporation, trust or unincorporated organization, ora government, or agency or political subdivision thereof.

 

“Prospectus” meansthe prospectus included in any Registration Statement, as amended orsupplemented by any prospectus supplement, with respect to the terms of theoffering of any portion of the Registrable Securities covered by suchRegistration Statement and all other amendments and supplements to theProspectus, including post-effective amendments and all material incorporated byreference in such Prospectus.

 

“Registered Transfer”is defined in Section 6(b).

 

“RegistrableSecurities” means all of the shares of Common Stock contributed by theCompany to the Pension Plan as described in the recitals hereto and any CommonStock of the Company issued in respect thereof (in the form of a stock dividendor otherwise)or in exchange or replacement for the Common Stock so contributed;provided, however, that a security ceases to be a RegistrableSecurity upon its Transfer pursuant to Sections 3 or 6 hereof.

 

“Registration”means the registration contemplated by Section 2 hereof, as thesame may be delayed, interrupted or resumed.

 

“RegistrationStatement” means any registration statement of the Company in aRegistration which covers any of the Registrable Securities pursuant to theprovisions of Section 2 of this Agreement, including theProspectus, amendments and supplements to such

 

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RegistrationStatement, post-effective amendments, all exhibits and all materialincorporated by reference in such Registration Statement.

 

“Rule 144” meansRule 144 under the Securities Act, or any successor or similar rule.

 

“Rule 415” meansRule 415 under the Securities Act, or any successor or similar rule.

 

“SEC” means theUnited States Securities and Exchange Commission.

 

“Securities Act”means the Securities Act of 1933, as amended, and the rules and regulationsthereunder.

 

“Shelf RegistrationStatement” is defined in Section 2(a).

 

“Transfer” meansany sale, transfer or other disposition (including any pledge and anydisposition upon the foreclosure of any pledge) or any agreement to do any ofthe foregoing.

 

Section 2.               RequiredRegistration.

 

(a)           Shelf Registration Rights.  As promptly as reasonably practicable afterthe date hereof, the Company shall use reasonable efforts to effect theRegistration of all of the Registrable Securities on a continuous basis underRule 415 by preparing and filing with the SEC a Registration Statement onForm S-3 (the “Shelf Registration Statement”); provided, however,that if, prior to the effective date of such Registration, circumstances arisewhich would, after such date, constitute a Permitted Interruption, the Companyshall be entitled to delay the Registration for the period of such PermittedInterruption but in no event shall such delay exceed forty-five (45) days.  The Company shall use reasonable efforts toremain eligible to register its securities on Form S-3, including, withoutlimitation, remaining current in any required filings under the Exchange Act.

 

(b)           Piggyback Registration.  In the event the Company proposes to make anunderwritten offering of newly-issued Common Stock, the Company shall providethe Manager with reasonable notice thereof and an opportunity to includetherein Registrable Securities, provided, however, that(i) no Registrable Securities shall be included therein if, in the opinionof the underwriters, their inclusion would impede the consummation of theprimary shares proposed to be included therein by the Company, and (ii) nogreater number shall be included than so approved by the underwriters as notimpeding such primary offering.  TheCompany shall not grant registration rights after the date hereof and beforethe expiration of the aforesaid piggyback rights that are superior in priorityto those granted herein.  The piggybackregistration rights in this Section 3(b) shall expire on the date that isthirty-six (36) months after the date of this Agreement.

 

(c)           Duration of Registration.  The Company shall use reasonable efforts(subject to any Permitted Interruption) to cause the Registration to remain ineffect until the date that is thirty-six months from the date of thisAgreement.

 

(d)           Under the circumstancesset forth in Section 4(a)(i), in the event the Company is required toinvoke such Section for a period longer than ninety (90) days, then afterthe

 

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expiration of such 90-dayperiod, the Company shall use its reasonable efforts to effect the registrationof the portion of the Registrable Securities indicated in a request from theManager.  The Company shall usereasonable efforts to effect such registration within thirty (30) days of receiptof such request and to maintain such registration effective for the period, notto exceed the longer of 90 days and the remaining term hereof, indicated in theplan of distribution.

 

## **Section 3**.               Limitations on Transfers.

## ** **

(a)           The Pension Plan shallnot make any Transfer of any Registrable Securities other than pursuant to(i) the Shelf Registration Statement in accordance with the plan ofdistribution described therein, (ii) Rule 144,****(iii) a Transfer to theCompany or a wholly-owned direct or indirect subsidiary of the Company pursuantto a self-tender offer or otherwise, (iv) a Transfer in response to atender offer permitted under Section 3(c) below, (v) aNegotiated Transfer permitted under Section 6 below or (vi) aTransfer pursuant to a merger or consolidation in which the Company is a constituentcorporation.  All such Transfers shallin addition be subject to the provisions of this Section 3 and all otherapplicable provisions of this Agreement.

 

(b)           The Manager shallprovide the Company with a notice of a proposed Transfer within a reasonableperiod of time before such proposed Transfer. Such notice shall state (i) the section of this Agreementpursuant to which the Pension Plan proposes to Transfer Registrable Securities,(ii) the maximum number of shares that the Pension Plan proposes toTransfer and (iii) whether the Transfer or Transfers will occur on a datespecified in such notice or during a period of time specified in thenotice.  Each notice of a proposedTransfer pursuant to this Section 3(b) shall be delivered areasonable period of time before such proposed Transfer and, in any event, asto (x) Transfers under the Shelf Registration Statement or Rule 144, notless than two Business Days before such proposed Transfer, and (y) Transfersunder Section 6, not less than five Business Days before suchproposed Transfer.  No such Transfershall be permitted unless the Company is reasonably satisfied that suchproposed Transfer is in compliance with ERISA, federal and state securitieslaws and regulations and other applicable laws and regulations.  Without limiting the generality of theforegoing, the Manager shall not effect any such Transfer if the Company’slegal counsel advises the Company and the Manager in writing that such Transferwould constitute a “prohibited transaction” (as described in Section 4975of the Code), unless the Pension Plan establishes to the reasonablesatisfaction of the Company that an exemption from such Section isavailable.

 

(c)           Notwithstanding theprovisions of this Agreement to the contrary, the Manager may effect a Transferby tendering all or any portion of the Registrable Securities into a *bona fide*exchange offer, a tender offer or a request or invitation for tenders (as suchterms are used in Sections 14(d) or 14(e) of the Exchange Act and the rules andregulations of the SEC thereunder) for Common Stock.

 

(d)           No Transfer ofRegistrable Securities in violation of this Agreement shall be made or recordedon the books of the Company, and any such attempted Transfer shall be void andof no effect.  Subject to Section 3(e)below, each certificate representing the Registrable Securities shallconspicuously bear legends in substantially the following form:

 

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THE SECURITIESREPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIESACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWAND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TOAN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATIONREQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.

 

THE SECURITIESREPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A REGISTRATION RIGHTS AGREEMENT,DATED AS OF JUNE 26, 2002 BY AND BETWEEN THE ISSUER OF SUCH SECURITIES(THE “COMPANY”) AND U.S. TRUST COMPANY, NATIONAL ASSOCIATION THAT CONTAINS,AMONG OTHER THINGS, CERTAIN RESTRICTIONS ON THE TRANSFER OF SUCHSECURITIES.  A COPY OF SUCH REGISTRATIONRIGHTS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDERHEREOF UPON WRITTEN REQUEST.

 

(e)           The Company willinstruct its transfer agent that the legends set forth in Section 3(d)shall be removed upon the Pension Plan’s Transfer of shares of Common Stock ifsuch Transfer is made in accordance with all applicable provisions of thisAgreement; provided, however, that if such Transfer is aNegotiated Transfer that is not registered under the Securities Act, the firstlegend shall remain on the certificates representing such shares until suchtime as the restrictions set forth in such legend cease to be applicable.

 

Section 4.               Interruptionsof Continuous Registration.

 

(a)           Permitted Interruptions.  The Company shall be entitled, effectiveimmediately upon notice given in conformity with Section 9(d) (an “InterruptionNotice”), to require the Pension Plan to cease to make any offers or salesof the Registrable Securities under any Registration Statement then in effectin the event that:

 

(i)            theCompany is no longer entitled to maintain a Registration on Form S-3 underRule 415;

 

(ii)           theCompany determines, as evidenced by a certificate of two of the Company’sexecutive officers, in its good faith and reasonable judgment, that theoffering of any Registrable Securities would require disclosure of material,nonpublic information not otherwise proposed to be disclosed; provided, however,that such interruption shall not exceed 90 days from the date the Company makessuch determination; and provided, further, that the Company shallnot be entitled to require more than one (1) such interruption in any twelvemonth period.

 

(iii)          theCompany has initiated bona fide discussions with an underwriter regarding thesale of its securities in a registered primary public offering and in such

 

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underwriter’s opinion, the continuation of offers and/or sales in theRegistration would have a material adverse effect on such offering underdiscussion (in which case the interruption may not exceed 90 days from theInterruption Notice); or

 

(iv)          at anytime the Company would be required, in order to maintain the effectiveness ofthe Registration Statement, to obtain audited financial statements not beingprepared independently of the Registration, unless the Pension Plan undertakesto pay the Company’s expenses in obtaining the requisite financial statements(in which case the interruption shall terminate when the requisite financialstatements are available).

 

Each of the foregoingevents or any combination thereof shall be hereinafter referred to as a “PermittedInterruption.”  In no event (otherthan pursuant to clause 4(a)(i) or clause 4(b)) shall the Manager berequired to cease offers and sales under the Registration Statement for morethan an aggregate of 180 days in any consecutive twelve-month period pursuantto Permitted Interruptions.

 

(b)           Holdback Agreements.  In the event the managing underwriter in anyregistration effected by the Company that gives rise to a PermittedInterruption so requests, the Manager will agree not to effect any public saleor distribution of the shares of Registrable Securities held by them (includinga sale pursuant to Rule 144) for a period up to 180 days following theeffective date of such registration that so gives rise to a PermittedInterruption, provided that such period shall not exceed the comparableholdback period applicable to the Company’s directors and officers.

 

(c)           Cessation of Offers.  The Manager hereby agrees that, upon receiptof any notice (including any Interruption Notice) from the Company of:

 

(i)            anyPermitted Interruption;

 

(ii)           anyrequest by the SEC for amendments or supplements to a Registration Statement orProspectus or for additional information;

 

(iii)          theissuance by the SEC of any stop order suspending the effectiveness of aRegistration Statement or the initiation of any proceedings for that purpose;

 

(iv)          therepresentations and warranties of the Company made in any underwritingagreement relating to the Registration ceasing to be true and correct in anymaterial respect;

 

(v)           the receiptby the Company of any notification with respect to the suspension of thequalification of any Registrable Securities registered in such Registration forsale in any jurisdiction or the initiation or threatening of any proceeding forsuch purpose (in which case the cessation of sales shall pertain only to theapplicable jurisdiction);

 

(vi)          thehappening of any event which makes any statement made in a RegistrationStatement, Prospectus or any document incorporated therein by reference untruein any material respect or which requires the making of any changes in any suchRegistration Statement or Prospectus so that they will not contain any untruestatement of a material fact or

 

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omit to state any materialfact required to be stated therein or necessary to make the statements thereinnot misleading; or

 

(vii)         theCompany’s reasonable determination that a post-effective amendment to aregistration statement would be appropriate;

 

that the Manager will forthwith discontinuedisposition of any Registrable Securities covered by such RegistrationStatement until such Pension Plan’s receipt of any required supplemental oramended materials or of advice in writing that use of the applicable Prospectusmay be resumed.  In such event, theCompany will use its reasonable efforts promptly to correct or supplement theRegistration Statement, to obtain the lifting of any stop order or otherwise toremove the circumstances preventing the Manager from continuing to make offersand sales under the Registration Statement, subject to the duration provided inSection 4 of any Permitted Interruption.

 

Section 5.               RegistrationProcedures.

 

(a)           State Law Compliance.  The Company shall use reasonable efforts tocause the Registrable Securities covered by such Registration to be registeredin a reasonable number of jurisdictions as requested by the Manager, providedthat the Company shall not be obligated to file a general consent to service ofprocess or to qualify to do business as a foreign corporation or otherwise tosubject itself to taxation in connection with any such registration.

 

(b)           Underwritten Offering.  If any of the Registrable Securities coveredby the Registration are to be sold in an underwritten offering, the investmentbanker or investment bankers and manager or managers that will administer theoffering will be selected by the Manager; provided, however, thatsuch investment bankers and managers must be reasonably satisfactory to theCompany.  The Company will enter intosuch agreements (including an underwriting agreement) and take all such otheractions reasonably necessary in connection therewith in order to expedite orfacilitate the disposition of such Registrable Securities, and in suchconnection:

 

(i)            makesuch representations and warranties to the underwriters in form, substance andscope as are customarily made by stockholders to underwriters in underwrittenofferings and confirm the same if and when requested;

 

(ii)           obtainopinions of counsel to the Company and updates thereof (which counsel andopinions (in form, scope and substance) shall be reasonably satisfactory to themanaging underwriter and the Pension Plan) addressed to the Pension Plan andthe underwriters, if any, covering the matters customarily covered in opinionsrequested in underwritten offerings and such other matters as may be reasonablyrequested by such holders and underwriters;

 

(iii)          enterinto an indemnity agreement in form, scope and substance as is customary inunderwritten offerings;

 

(iv)          obtain“cold comfort” letters and updates thereof as appropriate from the Company’sindependent certified public accountants addressed to the underwriters, if any,such letters to be in customary form and covering matters of the typecustomarily covered in “cold

 

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comfort” letters tounderwriters in connection with underwritten offerings (provided that no morethan one such cold comfort letter (and updates thereof) shall be required to beprovided at Company expense in connection with any one offering); and

 

(v)           deliversuch documents and certificates as may be reasonably requested by the PensionPlan and the managing underwriter, if any.

 

(c)           Confidentiality.  Each of the parties will treat all notices of proposed Transfersand all notices pursuant to Section 4(c) received from the otherparty with the strictest confidence and will not disseminate suchinformation.  Nothing herein shall beconstrued to require Company to make any public disclosure of information atany time.

 

(d)           Information Regarding Pension Plan.  The Manager shall furnish to the Companysuch information regarding the Pension Plan’s holdings of Common Stock and theproposed manner of distribution thereof and such other information as theCompany may reasonably request and as shall be required in connection with theRegistration and with any qualification under state law referred to in Section 5(a).  The Company agrees that it will furnish tothe Manager the number of prospectuses, offering circulars or other documents,or any amendments or supplements thereto, incident to such qualification understate law referred to in this Section 5 as the Pension Plan fromtime to time may reasonably request.

 

## **Section 6.**               Negotiated Transfers.

## ** **

(a)           TheManager shall deliver to Company a written notice that the Manager proposes tomake a Transfer of Registrable Securities pursuant to a negotiated transactionor series of related transactions with one or more transferees (each suchtransaction or series of related transactions, whether registered or not, beingreferred to herein collectively as a “Negotiated Transfer”).  Each notice of a proposed NegotiatedTransfer shall be delivered a reasonable period of time before the proposedTransfer and, in any event, not less than five Business Days before theproposed commencement of such proposed Transfer.  Each notice of a proposed Negotiated Transfer shall specify theapproximate number of Registrable Securities proposed to be Transferred, theproposed timetable for the transaction, whether the transfer will be madepursuant to the Shelf Registration Statement, and the anticipated per shareprice for such Transfer.  If theRegistrable Securities subject to any Negotiated Transfer are not registeredunder the Securities Act, the Pension Plan shall, prior to effecting suchNegotiated Transfer, cause each transferee in such Negotiated Transfer torepresent and warrant to the Pension Plan and Company in writing that(i) such transferee is acquiring such Registrable Securities for its ownaccount, or for one or more accounts, as to each of which such transfereeexercises sole investment discretion, for investment purposes only and not witha view to, or for resale in connection with, any distribution (within themeaning of the Securities Act), (ii) such transferee has such knowledgeand experience in financial and business matters as to be capable of evaluatingthe merits and risks of an investment in the Registrable Securities, and(iii) such transferee acknowledges that such Transfer has not been andwill not be registered under the Securities Act or any state securities law andsuch Registrable Securities may not be resold unless registered under theSecurities Act or unless such resale is exempt therefrom.

 

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(b)           Unless approved inadvance in writing by the Company, which may withhold such approval in itsdiscretion, the Manager shall not make a Negotiated Transfer to any one Person(or group of related Persons) if such Person (or group of related Persons) is,or as a result of such Negotiated Transfer will be (to the knowledge of thePension Plan after reasonable inquiry), the beneficial owner, as defined forpurposes of Section 13(d) of the Exchange Act (or any successor thereto),of more than 5% of Company’s outstanding Common Stock.

 

(c)           The Company shall makeavailable members of the management of the Company for such assistance as isreasonably requested by the Manager and its counsel in selling efforts relatingto any Negotiated Transfer.

 

Section 7.               Expensesof Registration.

 

The Company will bear allexpenses of the Registration (other than underwriting discounts and commissionsand brokerage commissions and fees, if any), including, without limitation,registration fees and legal and accounting fees (subject to Section 4regarding audited financial statements and Section 5 regardingcomfort letters) incurred by the Company in connection with any suchRegistration and amendments or supplements in connection therewith; provided,however, that the Company will not be required to reimburse the Managerfor attorneys’ fees incurred hereunder exceeding $30,000 (plus any reasonablyincurred out-of-pocket expenses incurred by such counsel) incurred in anycalendar year or after 36 months from the date hereof.

 

Section 8.               Indemnification.

 

(a)           Indemnification by the Company.  The Company agrees to indemnify and holdharmless, to the full extent permitted by law, each of the Pension Plan and theTrust, the Manager and its agents against all losses, claims, damages,liabilities and expenses caused by any untrue or alleged untrue statement of amaterial fact contained in any Registration Statement, Prospectus orpreliminary prospectus or any omission or alleged omission to state therein amaterial fact required to be stated therein or necessary to make the statementstherein not misleading, except insofar as the same are caused by or containedin any information furnished in writing to the Company by such Person or its agentsor any underwriter thereof expressly for use therein.  The Company will also indemnify underwriters, selling brokers,dealer managers and similar securities industry professionals participating inthe distribution, their officers and directors and each Person who controlssuch Persons (within the meaning of the Securities Act) to the same extent asprovided above with respect to the indemnification of the Pension Plan, theTrust, the Manager and its agents, if requested.  The Company shall be entitled to receive indemnities fromunderwriters, selling brokers, dealer managers and similar securities industryprofessionals participating in the distribution to the same extent as providedabove with respect to information so furnished in writing by such Personsspecifically for inclusion in any Prospectus or Registration Statement.

 

(b)           Indemnification by Holders ofRegistrable Securities. Each of the Pension Plan and the Trust severally agrees to indemnify, tothe full extent permitted by law, the Company, its directors and officers andeach Person who controls the Company (within the meaning of the Securities Act)against any losses, claims, damages, liabilities and expenses caused by anyuntrue

 

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statement of a materialfact or any omission of a material fact required to be stated in anyRegistration Statement or Prospectus or preliminary prospectus or necessary tomake the statements therein (in the case of a Prospectus, in the light of thecircumstances under which they were made) not misleading, to the extent, butonly to the extent, that such untrue statement or omission is contained in anyinformation or affidavit so furnished in writing by such Person specificallyfor inclusion in such Registration Statement or Prospectus.  In no event shall the liability of thePension Plan or the Trust hereunder be greater in amount than the dollar amountof the proceeds received by the Pension Plan upon the sale of the RegistrableSecurities giving rise to such indemnification obligation.

 

(c)           Delivery of Prospectus.  The indemnification provisions in Sections 8(a)and (b) above are subject to the condition that, insofar as they relateto any untrue statement (or alleged untrue statement) or omission (or allegedomission) made in a preliminary prospectus or prospectus but eliminated orremedied in the amended prospectus on file with the SEC at the time theregistration statement becomes effective or in any amended prospectus filedwith the SEC pursuant to Rule 424(b) or 424(c) (the “Final Prospectus”),such indemnity provisions shall not inure to the benefit of any underwriter,the Pension Plan, the Trust, the Manager or its agents, if the Company haspreviously delivered copies of such Final Prospectus to such underwriter, thePension Plan, the Trust, the Manager or its agents and if a copy of the FinalProspectus was not furnished by such underwriter, the Pension Plan, the Trust,the Manager or its agents, as the case may be, to the Person asserting theloss, liability, claim or damage prior to or concurrently with the sale of aRegistrable Security to such Person.

 

(d)           Conduct of IndemnificationProceedings.  Any Personentitled to indemnification hereunder will (i) give prompt notice to theindemnifying party of any claim with respect to which it seeks indemnificationand (ii) permit such indemnifying party to assume the defense of suchclaim with counsel reasonably satisfactory to the indemnified party; provided,however, that any Person entitled to indemnification hereunder shallhave the right to employ separate counsel and to participate in the defense ofsuch claim, but the fees and expenses of counsel shall be at the expense ofsuch Person unless (a) the indemnifying party has agreed to pay such feesor expenses, or (b) the indemnifying party shall have failed to assume thedefense of such claims and employ counsel reasonably satisfactory to suchPerson or (c) in the reasonable judgment of any such Person, based uponadvice of such Person’s counsel, a conflict of interest may exist between suchPerson and the indemnifying party with respect to such claims (in which case,if the Person notifies the indemnifying party in writing that such Personelects to employ separate counsel at the expense of the indemnifying party, theindemnifying party shall not have the right to assume the defense of such claimon behalf of such Person).  If suchdefense is not assumed by the indemnifying party, the indemnifying party willnot be subject to any liability for any settlement made without its consent(but such consent will not be unreasonably withheld or delayed).  No indemnifying party will consent to entryof any judgment or enter into any settlement which does not include as anunconditional term thereof the giving by the claimant or plaintiff to theindemnified party of a release from all liability in respect to such claim orlitigation.  An indemnifying party whois not entitled to, or elects not to, assume the defense of a claim will not beobligated to pay the fees and expenses of more than one counsel for all partiesindemnified by such indemnifying party with respect to such claim, unless inthe opinion of counsel to such Person a conflict of interest exists betweensuch Person and another indemnified Person with respect to such claim.

 

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(e)           Contribution.  If the indemnification provided for in this Section 8from the indemnifying party is unavailable to an indemnified party hereunder inrespect of any losses, claims, damages, liabilities or expenses referred totherein, then the indemnifying party, in lieu of indemnifying such indemnifiedparty, shall contribute to the amount paid or payable by such indemnified partyas a result of such losses, claims, damages, liabilities or expenses in suchproportion as is appropriate to reflect the relative fault of the indemnifyingparty and indemnified party in connection with the actions which resulted insuch losses, claims, damages, liabilities or expenses, as well as any other relevantequitable considerations.  The relativefault of such indemnifying party and indemnified party shall be determined byreference to, among other things, whether any action in question, including anyuntrue or alleged untrue statement of a material fact or omission or allegedomission to state a material fact, has been made by, or relates to informationsupplied by, such indemnifying party or indemnified party, and the parties’relative intent, knowledge, access to information and opportunity to correct orprevent such action.  The amount paid orpayable by a party as a result of the losses, claims, damages, liabilities andexpenses referred to above shall be deemed to include, subject to thelimitations set forth in Section 8(d) hereof, any legal or otherfees or expenses reasonably incurred by such party in connection with anyinvestigation or proceeding.

 

The parties hereto agree that it would not be just andequitable if contribution pursuant to this Section 8(e) weredetermined by pro rata allocation or by any other method of allocation whichdoes not take into account the equitable considerations referred to in theimmediately preceding paragraph. Notwithstanding the provisions of this Section 8(e), in noevent shall (i) the Pension Plan be required to contribute any amount inexcess of the amount by which the total price at which the RegistrableSecurities sold by the Pension Plan and distributed to the public were offeredto the public exceeds the amount of damages which such holder has otherwise beenrequired to pay by reason of such untrue or alleged untrue statement oromission or alleged omission or (ii) the Manager hereunder be required tocontribute any amount in excess of the aggregate fees received to date by theManager in connection with the Trust. No person guilty of fraudulent misrepresentation (within the meaning ofSection 11(f) of the Securities Act) shall be entitled to contributionfrom any Person who was not guilty of such fraudulent misrepresentation.

 

Section 9.               GeneralProvisions.

 

(a)           Succession.  In the event that the Registrable Securitiesare to be converted into or exchanged for (or become the right to receive)securities of an issuer other than the Person who is then Issuer hereunder inconnection with any transaction to which such Issuer is a party, such Issuershall cause the issuer of such securities to agree, effective as of suchconversion or exchange, that all rights, obligations and restrictions of Issuerset forth in this Agreement shall continue to apply to such securities.  As of the time of such conversion orexchange, such issuer shall be bound by this Agreement and shall succeed to allrights, restrictions and obligations of Issuer set forth in this Agreement, allreferences to Issuer herein shall thereafter be deemed to be references to suchissuer, and the predecessor Issuer shall be released from all obligations underthis Agreement except for any obligations under Section 8 withrespect to any registration of securities issued by such Issuer.  To evidence the foregoing, prior to the timeof such conversion or exchange, the Issuer may execute, and cause such issuerto execute, a Succession Agreement setting forth such issuer’s obligationspursuant to this Section 9. Upon request, the Manager shall

 

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acknowledge and agree toany such Succession Agreement as set forth therein.  To the extent required and permissible under applicable law, assoon as reasonably practicable after such conversion or exchange, such issuershall file with the SEC an amendment to the Shelf Registration Statement, ifany, then in effect to ensure that such Shelf Registration Statement shallcontinue to apply to such securities.

 

(b)           Termination.  All rights, restrictions and obligations ofCompany and the Pension Plan, except with respect to any rights and obligationsunder Section 8, shall terminate and this Agreement shall have nofurther force and effect on the earlier of the date set forth in Section 2(c)and the date the Pension Plan no longer holds any Registrable Securities.

 

(c)           Amendments and Waivers.  Except as otherwise provided herein, theprovisions of this Agreement may not be amended, modified or supplementedexcept by a writing signed by Company and the Manager.

 

(d)           Notice.  Each notice relating to this Agreement shallbe in writing and shall be delivered in person, by overnight air carrier, byregistered or certified mail, by facsimile transmission or by telex, to theparties at the following addresses (or at such other address for a party asshall be specified by like notice, provided that notices of a change of addressshall be effective only upon receipt thereof):

 

If to Company:

 

Magnetek, Inc.

10900 WilshireBoulevard, Suite 850

Los Angeles,California  90024

Attention:  Tina McKnight, Esq., General Counsel

Telecopy No.:  (310) 208-1322

 

with a copy to:

 

Gibson, Dunn &Crutcher LLP

333 South GrandAvenue

Los Angeles,California  90071-3197

Attention:  Jennifer Bellah Maguire, Esq.

Telecopy No.:  (213) 229-7520

 

If to Manager:

 

U.S. TrustCompany, National Association

515 South FlowerStreet, Suite 2700

Los Angeles,California  90071-2291

Attention:  Charles E. Wert

Telecopy No.:  (213) 488-1366

 

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with a copy to:

 

Jones, Day, Reavis& Pogue2727 North Harwood StreetDallas, Texas  75201Attention:  James E. O’Bannon, Esq.Telecopy No.:  (214) 969-5100

 

Unless otherwise specifically provided in thisAgreement, a notice shall be deemed to have been effectively given if mailed byregistered or certified mail to the proper address (with such notice to beeffective upon the earlier of actual receipt or five days after deposit in themail), if given in person or by overnight air carrier when delivered in personor by overnight air carrier, if given by telex or telecopy upon receipt ifconfirmed by return telecopy, telex or telephonic confirmation or otherwise;provided, however, that no notice shall be deemed received on a day that is nota Business Day in the jurisdiction in which notices are to be addressed to suchparty.  Any such notice shall not beeffective until the next Business Day in such jurisdiction.

 

(e)           GoverningLaw.  This Agreement shall begoverned by, and construed and enforced in accordance with, the internal law,and not the law pertaining to conflicts or choice of law, of the State ofDelaware.

 

(f)            Counterparts.  This Agreement may be executed in two ormore counterparts, each of which shall be deemed an original, but all of whichshall constitute one and the same instrument.

 

(g)           Complete Agreement.  This Agreement contains the entire agreementbetween the parties hereto with respect to the transactions contemplated hereinand supersedes all previous oral and written and all contemporaneous oralnegotiations, commitments and understandings.

 

(h)           Headings; Interpretation.  The headings contained in this Agreement arefor reference purposes only and shall not affect in any way the meaning orinterpretation of this Agreement.  Noparty hereto, nor its respective counsel, shall be deemed the drafter of thisAgreement for purposes of construing the provisions hereof.  The language in all parts of this Agreementshall in all cases be construed according to its fair meaning, and not strictlyfor or against any party hereto.

 

(i)            Gender and Number.  In this Agreement, unless the context otherwise requires, themasculine, feminine and neuter genders and the singular and the plural includeone another.

 

(j)            No Third-Party Beneficiaries.  This Agreement shall be for the sole andexclusive benefit of the Company, the Pension Plan, the Trust, the Manager andany other-investment manager or managers acting on behalf of the Pension Planwith respect to the Registrable Securities, and their respective successors,and directors, trustees, officers, employees, agents and controlling Personsindemnified hereunder.  Nothing in thisagreement shall be construed to give any other Person any legal or equitableright, remedy or claim under this Agreement.

 

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(k)           Cooperation.  Each party hereto shall take such furtheraction, and execute such additional documents, as may be reasonably required byany other party hereto in order to carry out the purposes of this Agreement.

 

(l)            Binding Effect; Assignment.  This Agreement shall be binding upon andshall inure to the benefit of and be enforceable by each of the parties andtheir successors and the directors, trustees (including, without limitation,any successor trustee for the Pension Plan), officers, employees, agents andcontrolling Persons of the parties. Except for an assignment to a successor trustee or to an investmentmanager as stated herein, and except as contemplated in Section 9(a),none of the rights or obligations under this Agreement shall be assigned by thePension Plan without the consent of the Company.

 

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IN WITNESS WHEREOF, the parties hereto have causedthis Agreement to be executed by their respective officers hereunto duly authorized,as of the date first above written.

 
|   | MAGNETEK,  INC.                                                                                                                                                                                                                                                        |
|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                                                                   |
|   |                                                                                                                                                                                                                                                                   |
|   | By:                                                                                                                                                                                                                                                                    |  /s/ David P. Reiland |   |
|   | Title:                                                                                                                                                                                                                                                                 | Sr. Vice  President & CFO |   |
|   |                                                                                                                                                                                                                                                                   |
|   | U.S. TRUST  COMPANY, NATIONAL ASSOCIATION, a national banking association, solely, in its  capacity as duly appointed and acting investment manager of a segregated  account held in the trust created under the MagneTek, Inc. FlexCare Plus  Retirement Pension Plan |
|   |                                                                                                                                                                                                                                                                   |
|   | By:                                                                                                                                                                                                                                                                    |  /s/ Charles E. Wert |   |
|   | Title:                                                                                                                                                                                                                                                                 | Charles E. Wert |   |
|   |                                                                                                                                                                                                                                                                   | Executive Vice  President and Senior Trust Officer |   |
|        |                                                                                                                                                                                                                                                                        |  |  |  |  |

 

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