EXHIBIT 2.2
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is entered into as of August 31, 1998, by and between
WESTOWER CORPORATION, a Washington corporation ("Westower"), and XXX X.
XXXXXXXXXX (the "Shareholder").
WHEREAS, on even date herewith the parties executed that certain Share
Exchange Agreement (the "Share Exchange Agreement") whereby Westower is
proposing to issue and sell, in exchange for all the issued and outstanding
shares of the stock of Standby Services, Inc., a Texas corporation, newly issued
shares of Westower's common stock (the "Westower Shares") to the Shareholder;
and
WHEREAS, Westower and the Shareholder desire to enter into this Agreement
to facilitate the exchange between the Shareholder and Westower as called for in
the Share Exchange Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Registration Rights Available. Pursuant to the terms and conditions
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contained herein, and in the Share Exchange Agreement, Westower agrees to
provide the Shareholder or any permitted assignee of the Shareholder
(collectively, the "Holder") with the following registration rights with respect
to the Westower Shares and any other securities issued or issuable at any time
or from time to time in respect of the Westower Shares as a result of a stock
split, stock dividend, recapitalization or other similar event involving
Westower (collectively, the "Registrable Securities"): (a) two demand
registration rights by means of shelf registrations pursuant to Rule 415
promulgated under the Securities Act of 1933, as amended (the "Securities Act")
(the "Shelf Registration Rights"), and (b) the right to "piggyback" on a firm
commitment underwritten offering of any securities of Westower other than the
Registrable Securities (the "Piggyback Registration Rights"). The Shelf
Registration Rights and the Piggyback Registration Rights are hereinafter
sometimes collectively referred to as the "Registration Rights."
2. Shelf Registration. With respect to the Shelf Registration Rights,
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the parties agree as follows:
(a) Subject to the restrictions of Paragraph 2(b) below, at any time
after 180 days following the date of this Agreement, the Holder may provide
written notice to Westower indicating his intention to exercise a Shelf
Registration Right. Westower shall promptly and in any event within 90 days of
receiving notice from the Holder, use its best efforts to file with the United
States
Securities and Exchange Commission (the "SEC") and cause to become effective a
registration statement on an appropriate form relating to the offer and sale of
the Registrable Securities owned by the Holder (the "Registration Statement").
Westower agrees to provide the Holder with notice of the filing of the
Registration Statement and of the filing of any amendments or supplements
thereto.
(b) Westower agrees to maintain any Registration Statement with
respect to a Shelf Registration Right in effect for nine months or completion of
the offering, whichever is earlier.
(c) In any offering pursuant to this paragraph that becomes effective
and in which the Holder participates, Westower shall file all amendments and
supplements under the Securities Act required for that purpose. In any offering
pursuant to this paragraph Westower will, as soon as practicable, use its best
efforts to effect such registration and use its best efforts to effect such
qualification and compliance as may be so requested and as would permit or
facilitate the distribution of the Registrable Securities, including, without
limitation registration under the Securities Act, appropriate qualifications
under applicable blue sky or other state securities laws, appropriate compliance
with any other governmental requirements and listing on a national securities
exchange on which the Registrable Securities are then listed or any inter-dealer
quotation system upon which the Registrable Securities may be quoted.
3. Piggyback Registration Rights. With respect to the Piggyback
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Registration Rights, the parties agree as follows:
(a) Subject to Paragraph 3(b), Westower will (i) promptly give to the
Holder written notice of any registration relating to an Underwritten Public
Offering, and (ii) include in such registration (and related qualification under
blue sky laws or other compliance) such of the Holder's Registrable Securities
as are specified in the Holder's written request or requests, mailed in
accordance with the terms of this Agreement within 30 days after the date of
such written notice from Westower.
(b) The right of the Holder to registration pursuant to the Piggyback
Registration Rights shall be conditioned upon the Holder's participation in such
underwriting, and the inclusion of the Registrable Securities in the
underwriting shall be limited to the extent provided herein. The Holder shall
(together with Westower) enter into an underwriting agreement in customary form
with the managing underwriter selected for the Underwritten Public Offering by
Westower. Notwithstanding any other provision of this Agreement, if the managing
underwriter determines that marketing factors require a limitation of the number
of the Registrable Securities to be underwritten, the managing underwriter may
limit some or all of the Registrable Securities that may be included in the
registration and the Underwritten Public Offering as follows: the number of the
Registrable Securities that may be included in the registration and the
Underwritten Public Offering by the Holder shall be determined by multiplying
the number of the shares of the Registrable Securities of all selling
shareholders of Westower which the managing underwriter is willing to include in
such registration and the Underwritten Public Offering times a fraction, the
numerator of which is the
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number of the Registrable Securities requested to be included in such
registration and the Underwritten Public Offering by the Holder, and the
denominator of which is the total number of the Registrable Securities which all
selling shareholders of Westower have requested to be included in such
registration and the Underwritten Public Offering. To facilitate the allocation
of shares in accordance with the above provisions, Westower may round the number
of shares allocable to any such person to the nearest 100 shares. If the Holder
disapproves of the terms of any such underwriting, it may elect to withdraw
therefrom by written notice to Westower and the managing underwriter, delivered
not less than seven days before the effective date of the Underwritten Public
Offering. Any of the Registrable Securities excluded or withdrawn from the
Underwritten Public Offering shall be withdrawn from such registration, and
shall not be transferred in a public distribution prior to 60 days after the
effective date of the Registration Statement relating thereto, or such other
shorter period of time as the underwriters may require.
4. Registration Procedure. With respect to each of the Registration
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Rights, the following provisions shall apply:
(a) The Holder shall be obligated to furnish to Westower and the
underwriters (if any) such information regarding the Registrable Securities and
the proposed manner of distribution of the Registrable Securities as Westower
and the underwriters (if any) may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to herein
and shall otherwise cooperate with Westower and the underwriters (if any) in
connection with such registration, qualification or compliance.
(b) With a view to making available the benefits of certain rules and
regulations of the SEC which may at any time permit the sale of any Restricted
Securities (as defined in Rule 144 promulgated under the Securities Act) to the
public without registration, Westower agrees to use its best lawful efforts to:
(i) Make and keep public information available, as those terms
are understood and defined in Rule 144 at all times during which Westower is
subject to the reporting requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(ii) File with the SEC in a timely manner all reports and other
documents required of Westower under the Securities Act and the Exchange Act (at
all times during which Westower is subject to such reporting requirements); and
(iii) So long as the Holder owns any Restricted Securities, to
furnish to the Holder upon request a written statement to Westower as to its
compliance with the reporting requirements of Rule 144 and with regard to the
Securities Act and the Exchange Act (at all times during which Westower is
subject to such reporting requirements), a copy of the most recent annual or
quarterly report of Westower, and such other reports and documents of Westower
and other information in the possession of or reasonably obtainable by Westower
as the Holder may
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reasonably request in availing itself of any rule or regulation of the SEC
allowing the Holder to sell any Restricted Securities without registration.
(c) Westower agrees that it will furnish to the Holder such number of
prospectuses meeting the requirements of Section 10(a)(3) of the Securities Act,
offering circulars or other documents incident to any registration,
qualification or compliance referred to herein as provided or, if not otherwise
provided, as the Holder from time to time may reasonably request.
(d) All expenses (except for any underwriting and selling discounts
and commissions and legal fees for the Holder's attorneys) of any registrations
permitted pursuant to this Agreement and of all other offerings by Westower
(including, but not limited to, the expenses of any qualifications under the
blue sky or other state securities laws and compliance with governmental
requirements of preparing and filing any post-effective amendments required for
the lawful distribution of the Registrable Securities to the public in
connection with such registration, of supplying prospectuses, offering circulars
or other documents) will be paid by Westower.
(e) In connection with the preparation and filing of any Registration
Statement under the Securities Act pursuant to this Agreement, Westower will
give the Holder and the Holder's attorneys and accountants, the opportunity to
participate in the preparation of any Registration Statement, each prospectus
included therein or filed with the SEC, and each amendment thereof or supplement
thereto, and will give each of them such access to its books and records and
opportunities to discuss the business of Westower with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary to conduct a reasonable investigation within the meaning of
the Securities Act.
(f) Westower shall notify each Holder of Registrable Securities
covered by a Registration Statement, during the time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits 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.
5. Blackout Period. At any time after the effective date of the
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Registration Statement, if Westower gives to the Holder a notice pursuant to
Paragraph 4(f) hereof and stating that Westower requires the suspension by the
Holder of the distribution of any of the Registrable Securities, then the
Shareholder shall cease distributing the Registrable Securities for such period
of time (the "Blackout Period"), not to exceed 120 days from the time notice is
sent until Westower informs the Holder that the Blackout Period has been
terminated. Upon notice by Westower to the Holder of such determination, the
Holder will (a) keep the fact of any such notice strictly confidential, (b)
promptly halt any offer, sale, trading or transfer of any of the Registrable
Securities for the duration of the Blackout Period, and (c) promptly halt any
use, publication, dissemination or distribution of each prospectus included
within the Registration Statement, and any amendment or supplement thereto by it
and any of its affiliates for the duration of the Blackout Period.
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6. Lock-Up. In connection with any Underwritten Public Offering, the
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Holder agrees, if requested, to execute a lock-up letter addressed to the
managing underwriter in customary form agreeing not to sell or otherwise dispose
of the Registrable Securities owned by the Holder (other than any that may be
included in the offering) for a period not exceeding 180 days.
7. Delay of Registration. No Holder shall have any right to obtain or
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seek an injunction restraining or otherwise delaying any registration of the
Registrable Securities as the result of any controversy that might arise with
respect to the interpretation or implementation of this Agreement.
8. Indemnification by Westower. In the event of any registration of the
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Registrable Securities of Westower under the Securities Act, pursuant to the
terms of this Agreement, Westower agrees to indemnity and hold harmless the
Holder and each other person who participates as an underwriter in the offering
or sale of the Registrable Securities against any and all claims, demands,
losses, costs, expenses, obligations, liabilities, joint or several, damages,
recoveries and deficiencies, including interest, penalties and attorneys' fees
(collectively the "Claims"), to which the Holder or any such underwriter may
become subject under the Securities Act or otherwise, insofar as the Claims or
actions or proceedings, whether commenced or threatened, in respect thereto
arise out of or are based on any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement under which the
Holder's Registrable Securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and Westower will
reimburse the Holder and each such underwriter for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
Claim or action or proceeding in respect thereto; provided that Westower shall
not be liable in any such case to the extent that any Claim or action or
proceeding in respect thereof or expense arises out of or is based on an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance on and in conformity
with written information furnished to Westower through an instrument duly
executed by the Holder specifically stating that it is for use in the
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Holder or any such
underwriter and survive the transfer of the Registrable Securities by the
Holder.
9. Indemnification by the Holder. Westower may require, as a condition
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to including the Registrable Securities in any Registration Statement filed
pursuant to this Agreement, that Westower shall have received an undertaking
satisfactory to it from the Holder, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Paragraph 8 hereof) Westower, each
director and officer of Westower and each other person, if any, who controls
Westower within the meaning of the Securities Act, with respect to any statement
or alleged statement or alleged statement in or omission or alleged omission
from the Registration Statement, any preliminary prospectus contained therein,
or any amendment or supplement thereto, if such statement or alleged statement
or omission or alleged omission was made in reliance on and in
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conformity with written information furnished to Westower through an instrument
duly executed by the Holder specifically stating that it is for use in the
preparation of the Registration Statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Notwithstanding the
foregoing, the maximum liability hereunder which the Holder shall be required to
suffer shall be limited to the net proceeds to the Holder from the Registrable
Securities sold by the Holder in any such offering. Such indemnity shall remain
in full force and effect, regardless of any investigation made by or on behalf
of Westower or any such director, officer or controlling person and shall
survive the transfer of the Registrable Securities by the Holder.
10. Notice of Claims. Promptly after receipt by an indemnified party of
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notice of the commencement of any action or proceeding involving a Claim, 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 this Agreement except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnifying party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of a 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 it 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 to
such indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
that 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 of a Claim.
11. Indemnification Payments. The indemnification required by this
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Agreement shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
12. Assignment of Registration Rights. The rights to cause Westower to
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register Registrable Securities pursuant to this Agreement may be assigned by
the Shareholder to a transferee or assignee of such securities who shall, upon
such transfer or assignment, be deemed a Holder under this Agreement; provided
that Westower is furnished with written notice of the name and address of such
transferee or assignee and the Registrable Securities with respect to which the
Registration Rights are being assigned; provided, further, that such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act and that such transferee or assignee is either (a) a member
of the immediate family or a trust for the benefit of any Holder that is an
individual or (b) a transferee or assignee that after the transfer or assignment
holds all of the Registrable Securities.
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13. Termination of this Agreement. This Agreement shall terminate with
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respect to the Holder when all of the Registrable Securities have been
registered as provided herein; provided, however, that the Registration Rights
contained herein shall not terminate if the Holder makes a registration request
pursuant to this Agreement, which request is currently tolled by reason of one
of the clauses (i) through (iii) in Paragraph 2(b), but shall terminate 15 days
after notice of the suspension of such tolling shall have been given to the
Holder.
14. Conflict. Notwithstanding anything herein contained to the contrary,
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in the event of any conflict between the terms of the Share Exchange Agreement
or this Agreement, the terms of the Share Exchange Agreement shall control.
15. Attorney's Fees. In the event that it should become necessary for any
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party entitled hereunder to bring suit against any other party to this Agreement
for enforcement of the covenants herein contained, the parties hereby covenant
and agree that the party who is found to be in violation of said covenants shall
also be liable for all reasonable attorney's fees and costs of court incurred by
the other parties hereto.
16. Benefit. All the terms and provisions of this Agreement shall be
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binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
17. Notices. Any notice, request, instruction or other document to be
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given hereunder by any party or parties hereto to the other parties will be
effective upon receipt by the other parties if given in writing, delivered
personally, mailed by registered or certified mail, postage paid, sent by
commercial overnight delivery service, fees prepaid, or sent by confirmed
facsimile transmission to the following addresses or facsimile transmission
numbers:
(a) If to Westower, addressed to:
Mr. Xxxxx Xxxxx
Westower Corporation
0000 X.X. 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile Transmission Number: 000-000-0000
Confirmation Number: 000-000-0000
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With a courtesy copy to:
Xxxxx X. Xxxxxxxxx, Esquire
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Facsimile Transmission Number: 000-000-0000
Confirmation Number: 000-000-0000
(b) If to the Shareholder, addressed to:
Xx. Xxx X. Xxxxxxxxxx
Standby Services, Inc.
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
Facsimile Transmission Number: 000-000-0000
Confirmation Number: 713-467- 1362
With a courtesy copy to:
Xxxxx Xxxxxxxx, Esquire
Xxxxxxxx & Xxxxxxx
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Facsimile Transmission Number: 000-000-0000
Confirmation Number: 713-650-0255
Failure to send a courtesy copy of any notice as provided above shall not
make the provision of such notice defective. Any party hereto may direct in
writing that notices or courtesy copies thereof be sent to other or additional
addresses by like notice.
18. Construction. Words of any gender used in this Agreement shall be
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held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise. In addition, the pronouns used in this Agreement shall be understood
and construed to apply whether the party referred to is an individual,
partnership, joint venture, corporation or an individual or individuals doing
business under a firm or trade name, and the masculine, feminine and neuter
pronouns shall each include the other and may be used interchangeably with the
same meaning.
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19. Waiver. No course of dealing on the part of any party hereto or its
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agents, or any failure or delay by any such party with respect to exercising any
right, power or privilege of such party under this Agreement or any instrument
referred to herein shall operate as a waiver thereof, and any single or partial
exercise of any such right, power or privilege shall not preclude any later
exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
20. Cumulative Rights. The rights and remedies of any party under this
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Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
21. Invalidity. In the event any one or more of the provisions contained
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in this Agreement or in any instrument referred to herein or executed in
connection herewith shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect the other provisions of this Agreement or any such other
instrument.
22. Time of the Essence. Time is of the essence of this Agreement.
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23. Headings. The headings used in this Agreement are for convenience and
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reference only and in no way define, limit, simplify or describe the scope or
intent of this Agreement, and in no way effect or constitute a part of this
Agreement.
24. Excusable Delay. None of the parties hereto shall be obligated to
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perform and none shall be deemed to be in default hereunder, if the performance
of a non-monetary obligation is prevented by the occurrence of any of the
following, other than as the result of the financial inability of the party
obligated to perform: acts of God, strikes, lock-outs, other industrial
disturbances, acts of a public enemy, wars or war-like action (whether actual,
impending or expected and whether de jure or de facto), arrest or other
restraint of governmental (civil or military) blockades, insurrections, riots,
epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms,
floods, washouts, sink holes, civil disturbances, explosions, breakage or
accident to equipment or machinery, confiscation or seizure by any government of
public authority, nuclear reaction or radiation, radioactive contamination or
other causes, whether of the kind herein enumerated, or otherwise, that are not
reasonably within the control of the party claiming the right to delay
performance on account of such occurrence.
25. Multiple Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
26. Law Governing. This Agreement shall be construed and governed by the
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laws of the State of Washington.
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27. Perfection of Title. The parties hereto shall do all other acts and
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things that may be reasonably necessary or proper, fully or more fully, to
evidence, complete or perfect this Agreement, and to carry out the intent of
this Agreement.
28. Entire Agreement. This instrument, together with all of the other
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Authorized Agreements described in the Share Exchange Agreement, contains the
entire understanding of the parties and may not be changed orally, but only by
an instrument in writing signed by the party against whom enforcement of any
waiver, change, modification, extension, or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first written above.
WESTOWER CORPORATION
By /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Chairman of the Board
/s/ Xxx X. Xxxxxxxxxx
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XXX X. XXXXXXXXXX
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