Exhibit 2.2
-----------
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of the
10th day of November, 1998, by and among Westower Corporation, a Washington
corporation (the "Company"), and Xxxx X. Xxxxxxx, Xxxx X. Xxxxxx, the Xxxx X.
Xxxxxxx Children's Trust and the Xxxx X. Xxxxxx Children's Trust (the
"Shareholders").
BACKGROUND
On November 10, 1998, the parties to this Agreement entered into an
Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which
Westower Summit Acquisition, LLC, a Mississippi limited liability company and
wholly owned subsidiary of the Company ("Sub"), was merged with and into Summit
Communications, LLC, a Mississippi limited liability company. Capitalized terms
used in this Agreement and not otherwise defined in this Agreement shall have
the meanings given to them in the Merger Agreement.
Pursuant to the Merger Agreement, the Company issued to the Shareholders
shares of Westower Stock. As a material term of the Merger Agreement, the
Company has agreed to grant to the Shareholders certain registration rights with
respect to the Registrable Securities.
Therefore, the parties agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The term "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(b) The term "Act" means the Securities Act of 1933, as amended.
(c) The term "Holder" means any person owning or having the right to
acquire Registrable Securities or any assignee of Registrable Securities in
accordance with Section 1.10 of this Agreement.
(d) The term "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Act, and the declaration or ordering of effectiveness
of such registration statement.
(e) The term "Registrable Securities" means the shares of Westower
Stock issued under the Merger Agreement and any securities of the Company
issued or issuable in exchange for or in replacement of, such Westower
Stock, excluding in all cases, however, (i) any Registrable Securities
transferred by a Holder in a transaction in which rights under this
Agreement are not assigned, (ii) any Registrable Securities sold in a
public offering pursuant to a Registration Statement filed with the SEC, or
(iii) any Registrable Securities which may be sold in a single 3-month
period without registration under the Act pursuant to Rule 144 promulgated
under the Act ("Rule 144").
(f) The term "SEC" means the Securities and Exchange Commission.
1.2 DEMAND REGISTRATION
(a) If the Company receives at any time after the date that is 12
months after Closing, a written request from the Holders of a majority of
the Registrable Securities then outstanding (the "Initiating Holders") that
the Company file a registration statement under the Act covering the
registration of at least fifty percent (50%) of the Registrable Securities
then outstanding, then the Company shall:
(i) within 10 days of the receipt thereof, give written notice of
such request to all Holders; and
(ii) use all reasonable efforts to effect as soon as practicable,
and in any event within 180 days of the receipt of such request, the
registration under the Act of all Registrable Securities which the
Holders request to be registered, within 30 days of the mailing of
such notice by the Company in accordance with Section 2.4. subject to
the limitations of subsection 1.2(b).
(b) If the Initiating Holders intend to distribute Registrable
Securities by means of an underwriting, they shall so advise the Company as
a part of their request made pursuant to subsection 1.2(a), and the Company
shall include such information in the written notice referred to in
subsection 1.2(a). The underwriter will be selected by the Initiating
Holders and shall be an underwriter of regional or national standing
reasonably acceptable to the Company. In such event, the right of any
Holder to include Registrable Securities in the registration shall be
conditioned upon such Holder's participation in the underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder). All Holders proposing to distribute
their securities through the underwriting shall (together with the Company
as provided in subsection 1.4(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 1.2, if
the underwriter advises the Initiating Holders in writing that marketing
factors require a limitation of the number of shares to be underwritten,
then the Initiating Holders shall so advise all Holders of
-2-
Registrable Securities which would otherwise be underwritten pursuant to
this subsection, and the number of shares of Registrable Securities that
may be included in the underwriting shall be allocated among all Holders,
including the Initiating Holders, in proportion (as nearly as practicable)
to the amount of Registrable Securities of the Company owned by each
Holder; provided, however, that the number of shares of Registrable
Securities to be included in the underwriting shall not be reduced unless
all other securities are first entirely excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company furnishes to
Initiating Holders a certificate signed by the Chief Executive Officer of
the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company
and its shareholders for a registration statement to be filed and it is
therefore essential to defer the filing of the registration statement, the
Company shall have the right to defer taking action with respect to the
filing for a period of not more than 120 days after receipt of the request
of the Initiating Holders; provided, however, that the Company may not
utilize this right more than once in any twelve-month period.
(d) In addition, the Company shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 1.2:
(i) after the Company has effected two registrations pursuant to
this Section 1.2 and such registrations have been declared or ordered
effective; and
(ii) within twelve months after the effective date of the first
registration made pursuant to this Section 1.2.
1.3 PIGGYBACK REGISTRATION.
If the Company proposes to register (including for this purpose a
registration effected by the Company for shareholders other than the Holders)
any of its stock under the Act in connection with the public offering of such
securities solely for cash (other than a registration on Form S-4 or Form S-8 or
successors thereto or on any other form which does not include substantially the
same information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within 20 days after mailing of such notice
by the Company, the Company shall, subject to the provisions of Section 1.4,
cause to be registered under the Act all of the Registrable Securities that each
such Holder has requested to be registered. In the event that the Company
decides, for any reason, not to complete the registration of shares of common
stock other than the Registrable Securities, or in the event that inclusion of
the Registrable Securities would in the opinion of the managing underwriter for
the offering, impair an offering by the Company or its shareholders for whom the
registration statement is filed, the Company shall have no obligation under this
Section 1.3 to register, or continue with the registration of, the Registrable
Securities.
-3-
1.4 OBLIGATIONS OF THE COMPANY. Whenever required under this Section 1 to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of
the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for a period of up
to 120 days or until the distribution contemplated in the Registration
Statement has been completed; provided, however, that the 120-day period
shall be extended for a period of time equal to the period the Holder is
prohibited from selling any securities included in such registration
pursuant to Section 1.11 hereof or the terms of any lockup agreement
entered into at the request of the Company or an underwriter.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by the registration statement under other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided that the Company shall not be required to qualify to do business
or to file a general consent to service of process in any such states or
jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act or the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state 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.
-4-
(g) Cause all Registrable Securities registered pursuant to this
Agreement to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to this Agreement and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date
of the registration.
(i) Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this
Agreement, on the date that the Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this
Section 1, if such securities are being sold through underwriters, or, if
such securities are not being sold through underwriters, on the date that
the registration statement with respect to such securities becomes
effective, (i) an opinion, dated such date, of the counsel representing the
Company, in form and substance as is customarily given to underwriters in
an underwritten public offering, and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering.
1.5 EXPENSES OF DEMAND REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Section 1.2, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company (including the reasonable fees and
disbursements of one counsel for the selling Holders) shall be borne by the
Company, provided, however, that the Company shall not be required to pay for
any expenses of any registration proceeding begun pursuant to Section 1.2 if the
registration request is subsequently withdrawn at the request of the Holders of
a majority of the Registrable Securities to be registered (in which case all
participating Holders shall bear such expenses) unless the Holders of a majority
of the Registrable Securities agree to forfeit their right to one demand
registration pursuant to Section 1.2.
1.6 EXPENSES OF COMPANY REGISTRATION. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to the registrations pursuant to Section
1.3 for each Holder, including (without limitation) all registration, filing,
and qualification fees, printers and accounting fees relating or apportionable
thereto and the fees and disbursements of counsel for the Company and the
reasonable fees and disbursements of one counsel for the selling Holders
selected by them, but excluding underwriting discounts and commissions relating
to Registrable Securities.
1.7 UNDERWRITING REQUIREMENTS. In connection with any offering involving
an underwriting of shares of the Company's capital stock, the Company shall not
be required under Section 1.3 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it
-5-
(or by other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, to be included in such
underwriting exceeds the amount of securities, other than the securities to be
sold by the Company, that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the underwriting only that number of Registrable Securities, if
any, which the underwriters determine in their sole discretion will not
jeopardize the success of the offering (the Registrable Securities so included
to be apportioned pro rata among the selling shareholders having piggyback
registration rights according to the total amount of Registrable Securities
entitled to be included therein owned by each selling stockholder or in such
other proportions as shall mutually be agreed to by such selling stockholder).
1.8 INDEMNIFICATION. In the event any Registrable Securities are included
in a registration statement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Act or the 1934 Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto or (ii) the 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 the Company
will pay to each such Holder, underwriter or controlling person, as
incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement
contained in this subsection shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability, or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that
it arises out of or is based upon written information furnished expressly
for use in connection with such registration by any such Holder,
underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers
who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any
other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any
losses, claims, damages, or liabilities (joint or several) to which any of
the foregoing persons may become subject, under the Act, the 1934 Act or
other federal or state law, insofar as such
-6-
losses, claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon written information furnished by such Holder
expressly for use in connection with such registration; and each such
Holder will pay, as incurred, any legal or other expenses reasonably
incurred by any person intended to be indemnified pursuant to this
subsection, in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; provided, that, in no event shall any
indemnity under this subsection exceed the gross proceeds from the offering
received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to
be made against any indemnifying party under this Section, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, than an
indemnified party (together with all other indemnified parties which may be
represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if prejudicial to
its ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section, but the omission
so to deliver written notice to the indemnifying party will not relieve it
of any liability that it may have to any indemnified party otherwise than
under this Section.
(d) If the indemnification provided for in this Section is held by a
court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, claim,
damage, or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim, damage, or expense
as well as any other relevant equitable considerations. The relative fault
of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified
-7-
party and the parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this Section
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement.
1.9 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making
available to the Holders the benefits of Rule 144, the Company agrees to use its
reasonable best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, upon request (i) a written statement by the Company stating
whether it has complied with the reporting requirements of Rule 144, the
Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such
form.
1.10 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company
to register Registrable Securities pursuant to this Agreement may be assigned
(but only with all related obligations) by a Holder, provided: (a) the Company
is, within a reasonable time after such transfer, furnished with written notice
of the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; (b) such
transferee or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement; (c) 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 Act and the Merger
Agreement; and (d) the Company gives its prior written consent, such consent not
to be unreasonably withheld. The Company agrees that it will consent to
assignments to trusts created by the Shareholders for estate planning purposes.
1.11 BLACKOUT PERIOD. If at any time after the effective date of a
registration statement filed hereunder the Company gives to the Shareholders a
notice pursuant to Section 1.4(f) hereof
-8-
stating that the Company requires the suspension by the Shareholders of the
distribution of any of the Registrable Securities, then the Shareholders 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
the Company informs the Shareholders that the Blackout Period has been
terminated. Upon notice by the Company to the Shareholders of such
determination, the Shareholders 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.
1.12 LOCK-UP. In connection with any underwritten public offering by the
Company, the Shareholders agree, 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 Shareholders (other
than any that may be included in the offering) for a period not exceeding 180
days.
2. MISCELLANEOUS
2.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any Registrable Securities). Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
2.2 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Washington.
2.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.4 NOTICES. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in the manner and to the addresses set forth
in the Merger Agreement.
2.5 EXPENSES. If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees, costs and necessary disbursements in addition to
any other relief to which such party may be entitled.
2.6 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended,
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the
-9-
holders of a majority of the Registrable Securities then outstanding. Any
amendment or waiver effected in accordance with this Section shall be binding
upon each holder of any Registrable Securities then outstanding, each future
holder of all such Registrable Securities, and the Company.
2.7 SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provisions shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provisions were so excluded and shall be enforceable with its terms.
2.8 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter of this agreement.
-10-
The parties have executed this Registration Rights Agreement as of the date
first above written.
WESTOWER CORPORATION,
a Washington Corporation
By:/s/ Xxxxxx X. Xxxxx
----------------------------------
Xxxxxx X. Xxxxx, Chairman
/s/ Xxxx X. Xxxxxxx
----------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx
The Xxxx X. Xxxxxxx Children's Trust
/s/ Xxxxxxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxxxxxx X. Xxxxxxx, Sole Trustee
The Xxxx X. Xxxxxx Children's Trust
/s/ Xxx Xxxx
----------------------------------
Xxx Xxxx, Sole Trustee
-11-
