EXHIBIT 4.13
REGISTRATION RIGHTS AGREEMENT
This Agreement is entered into as of this 23rd day of November, 1993 among
Robertson-Ceco Corporation, a Delaware corporation (the "Company"), and Foothill
Capital Corporation, a California corporation ("Foothill").
WHEREAS, the Company and Foothill are parties to the Loan and Security
Agreement dated as of April 12, 1993 (the "Loan Agreement");
WHEREAS,pursuant to the Loan Agreement and the Facility Note (as defined
in the Loan Agreement), the Company may discharge all or part of its obligations
under the Facility Note by issuing to Foothill shares of the Company's common
stock, $.01 par value per share (the "Common Stock"); and
WHEREAS, the Common Stock, if any, to be received by Foothill would be
issued without registration under the Securities Act (as defined below), and
therefore the resale by Foothill of such shares of Common Stock would be subject
to restrictions under the Securities Act;
WHEREAS, the Loan Agreement requires that the Company and Foothill enter
into this Agreement concurrently with any such issuance of Common Stock to
Foothill;
NOW THEREFORE, in consideration of the foregoing recitals, the mutual
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned hereby
agree as follows:
1. Demand Registration Rights.
1.1 Request for Demand Registration. Upon notice from one or more
Initiating Holders (as defined below) requesting that the Company effect the
registration under the Securities Act of all or part of the Registrable
Securities (as defined below) held by such Initiating Holders and specifying the
intended method or methods of disposition of such Registrable Securities, the
Company will promptly give written notice of such requested registration to all
holders of Registrable Securities and thereupon will use its best efforts to
effect the registration, under the Securities Act, of:
(i) the Registrable Securities which the Company has been so
requested to register by such Initiating Holders, for disposition in
accordance with the intended method of disposition stated in such request,
and
(ii) all other Registrable Securities which the Company has been
requested to register by the holders of Registrable Securities by written
request delivered to the Company within 30 days after the giving of such
written notice by the Company (which request shall specify the intended
method of disposition of such Registrable Securities),
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered.
During the period beginning upon receipt by the Company of the notice from
Initiating Holders referred to above and ending upon the effective date of a
registration statement covering the Registrable Securities referred to in such
notice (or the prior termination of the proposed registration thereof, if and to
the extent permitted by this Agreement), the Company shall not register under
the
Securities Act any other shares of its Common Stock, except for registration on
Form S-8 of shares to be issued under employee benefit plans of the Company;
provided, that (i) this provision shall not be construed to limit the Company's
right to register other shares of its Common Stock simultaneously with
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registration of Registrable Securities, to the extent permitted by this
Agreement
and (ii) this provision shall not prohibit any registration as to which the
holders of Registrable Securities had been given the opportunity to exercise
piggyback registration rights pursuant to Section 2 below, and failed to
exercise
such rights.
1.2 Form of Demand Registration Statement. Registrations under this
Section 1 shall be on such form as shall be selected by the Company and shall
permit the disposition of the Registrable Securities included therein in
accordance with the intended method or methods of disposition specified in the
request for such registration.
1.3. Exceptions to Demand Registration Rights. Notwithstanding the
foregoing provisions of this Section 1, the Company will not be required to
effect, or to take any action to effect, any such registration pursuant to this
Section 1:
(i) after the Company has effected two (2) such registrations
pursuant to this Section 1;
(ii) if the Company has effected a registration pursuant to this
Section 1 within the preceding twelve months, or has effected any
registration within the preceding six months in which the Initiating
Holders could have participated under Section 2;
(iii) if the request for registration does not request the
registration of at least 500,000 shares of Common Stock (subject to
adjustment in respect of stock dividends, stock splits and similar
corporate events), and contain a representation of a good faith intention
to sell such shares pursuant to the registration statement; or
(iv) for any period of 90 days during any twelve month period if the
Board of Directors of the Company determines in good faith that the public
sale of securities or the furnishing of a registration statement at such
time would be materially detrimental to the Company.
1.4. Effectiveness of Demand Registration. For purposes of this Section
1, a registration shall not be deemed to have been effected pursuant to this
Section 1 (i) unless a registration statement with respect thereto has become
effective, (ii) if after a registration statement has become effective, such
registration is interfered with by any stop order, injunction, or other order of
the Commission (as defined below) for any reason not attributable to any holder
of Registrable Securities, or (iii) the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration
are not satisfied or waived other than by reason of the failure or refusal of
any
holder of Registrable Securities.
2. Piggyback Registration Rights. If the Company at any time proposes to
register any shares of Common Stock under the Securities Act, whether or not for
sale for its own account, on a form which would permit registration of
Registrable Securities for sale to the public under the Securities Act, it will
each such time give written notice to all holders of Registrable Securities of
its intention to do so, specifying the form and manner and the other relevant
facts involved in such proposed registration, and upon the written request of
any
such holder delivered to the Company within 30 days after the giving of any such
notice (which request shall specify the Registrable Securities intended to be
disposed of by such holder and the intended method of disposition thereof), the
Company will use its best efforts as a part of its filing to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by the holders of Registrable
Securities, to the extent requisite to permit the disposition (in accordance
with
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the intended methods thereof as aforesaid) of the Registrable Securities so to
be registered, provided that:
(i) if (x) the registration so proposed by the Company involves an
underwritten offering, whether or not for sale for the account of the
Company, to be distributed (on a firm commitment basis) by or through one
or more underwriters of recognized standing under underwriting terms
appropriate for such a transaction, (y) the Registrable Securities so
requested to be registered for sale for the account of holders of
Registrable Securities are not also to be included in such underwritten
offering (either because the Company has not been requested so to include
such Registrable Securities pursuant to Section 2 hereof or, if requested
to do so, has been unable so to include such Registrable Securities after
using reasonable efforts to do so as provided in Section 3.3 hereof), and
(z) the managing underwriter of such underwritten offering shall advise
the Company in writing that, in its opinion, the distribution of all or a
specified portion of such Registrable Securities concurrently with the
securities being distributed by such underwriters will substantially
interfere with the successful offering of such securities by such
underwriters (such opinion to state the approximate number of shares which
can be distributed without such effect), then the Company will promptly
furnish each such holder of Registrable Securities with a copy of such
opinion and may require, by written notice to each such holder
accompanying such opinion, that the number of shares of Registrable
Securities to be included in such registration statement be limited to the
number indicated in such opinion (such portion to be allocated among such
holders of Registrable Securities and all other Persons (as defined below)
(other than the Company) proposing to include Common Stock in the
registration in proportion to the respective numbers of shares requested
to be registered by such holders);provided, that shares held by any
Persons (other than the Company) participating in such offering pursuant
to the exercise of piggyback registration rights granted after the date
hereof shall be excluded in their entirety prior to the exclusion of any
Registrable Securities;
(ii) the Company shall not be obligated to effect any registration
of Registrable Securities under this Section 2 incidental to any
registration involving any of its securities other than Common Stock, or
incidental to the registration of Common Stock in connection with any
merger, acquisition, exchange offer, dividend reinvestment plan or stock
option or other employee benefit plan; and
(iii) if, at any time after giving written notice of its intention
to register Common Stock and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason either not to register or to delay
registering such Common Stock, the Company may, at its election, give
written notice of such determination to each holder of Registrable
Securities and, thereupon, (x) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration, without prejudice,
however, to the rights of one or more Initiating Holders to request that
such registration be affected as a registration under Section 1 and (y) in
the case of a determination to delay registering, shall be permitted to
delay registering any Registerable Securities for the same period as the
delay in registering such other Common Stock.
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3. Registration Procedures.
3.1. Preparation of Registration Statement, etc. If and whenever the
Company is required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections 1 and 2
hereof, the Company will as expeditiously as possible:
(i) prepare and (in the case of a registration pursuant to Section
1 hereof, within 45 days after the end of the period within which requests
for registration may be delivered to the Company) file with the Commission
a registration statement with respect to such Registrable Securities and
use its best efforts to cause such registration statement to become
effective; provided that before filing such registration statement and any
amendments thereto, the Company will furnish to counsel selected by the
holders of Registrable Securities to be included in such registration
statement copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel. In the case of
a registration under Section 1 hereof, such registration statement shall
be for an offering to be made on a continuous or delayed basis (a
so-called "shelf registration statement") if the Company is eligible for
the use thereof and the holders of a majority of the Registrable
Securities to be included in such registration statement have requested a
shelf registration statement;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities and
other securities covered by such registration statement until such time as
all of such Registrable Securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers thereof
set forth in such registration statement, but in no event for a period of
more than one year after such registration statement becomes effective;
(iii) furnish to each seller of such Registrable Securities such
number of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits,
except that the Company shall not be obligated to furnish any such seller
with more than two copies of such exhibits other than incorporated
documents), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus and any
summary prospectus) in conformity with the requirements of the Securities
Act, such documents incorporated by reference in such registration
statement or prospectus, and such other documents, as such seller may
reasonably request in order to facilitate the disposition of its
Registrable Securities covered by such registration statement;
(iv) use its best efforts to register or qualify such Registrable
Securities under such securities or blue sky laws of such jurisdictions as
each seller shall reasonably request, and do any and all other acts and
things which may be necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of its Registrable
Securities covered by such registration statement;
(v) furnish to each seller of such Registrable Securities a signed
counterpart, addressed to such seller, of an appropriate opinion of
counsel for the Company covering substantially the same matters with
respect to such registration statement (and the prospectus included
therein) as are customarily covered in opinions of issuer's counsel
delivered to underwriters in underwritten public offerings of securities;
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(vi) immediately upon becoming aware of the same, notify each seller
of Registrable Securities covered by such registration statement, at any
time when a prospectus relating thereto is required to be delivered under
the Securities Act, of 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 any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such seller prepare and furnish to
such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances then existing;
(vii) otherwise use its best efforts to comply with the Securities
Act, and make available to its securities holders, as soon as reasonably
practicable, but not more than eighteen months after the effective date of
such registration statement, an earnings statement covering the period of
at least twelve months beginning with the first day of the first fiscal
quarter after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(viii) unless such Registrable Securities are already listed on each
securities exchange, if any, on which the Company's common equity is then
listed, use its best efforts to list such Registrable Securities on each
such securities exchange.
Each holder of Registrable Securities shall be deemed to have agreed by
acquisition of such Registrable Securities that upon receipt of any notice from
the Company of the happening of any event of the kind described in clause (vi)
of this Section 3.1, such holder will forthwith discontinue such holder's
offering or disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such holder's receipt of
the
copies of the supplemented or amended prospectus contemplated by said clause
(vi)
and, if so directed by the Company, will deliver to the Company (at the
Company's
expense) all copies, other than permanent file copies, then in such holder's
possession of the prospectus covering such Registrable Securities current at the
time of receipt of such notice.
3.2. Information Concerning Sellers. The Company may require each seller
of Registrable Securities as to which any registration is being effected to
furnish the Company such information regarding such seller and the distribution
of such securities as the Company may from time to time reasonably request in
writing and which shall be required by law or by the Commission in connection
therewith.
3.3. Demand Underwritten Offering. Whenever a registration requested by
one or more Initiating Holders pursuant to Section 1 hereof is for an
underwritten offering, only shares which are to be distributed by the
underwriters designated by the requesting holder may be included in such
registration. If Persons holding a majority of the Registrable Securities to be
included in such registration shall determine that the number of shares of
Registrable Securities should be limited due to market conditions or otherwise,
all holders of Common Stock other than Registrable Securities shall first share
pro rata in the number of shares to be deferred, with any excess in the number
of shares to be deferred to be shared pro rata among all holders of Registrable
Securities, such sharing in each case to be based on the respective numbers of
shares as to which registration has been requested by such holders.
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3.4. Underwriting Agreement. If requested by the underwriters for any
underwritten offering of Registrable Securities on behalf of a holder or holders
of Registrable Securities pursuant to a registration requested under Section 1
hereof, the Company will enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Company and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnity and contribution to the
effect and to the extent provided in Section 4 hereof. If the Company at any
time proposes to register any of its securities under the Securities Act (other
than pursuant to a request made under Section 1 hereof), whether or not for sale
for its own account, and such securities are to be distributed by or through one
or more underwriters, the Company will make reasonable efforts, if requested by
any holder of Registrable Securities who requests incidental registration of
Registrable Securities in connection therewith pursuant to Section 2 hereof, to
arrange for such underwriters to include such Registrable Securities among those
securities to be distributed by or through such underwriters, provided that
reasonable efforts shall not require the Company to reduce the amount or sale
price of such securities proposed to be distributed by or through such
underwriters. The holders of Registrable Securities on whose behalf Registrable
Securities are to be distributed by such underwriters shall be parties to any
such underwriting agreement and the representations and warranties by, and the
other agreements on the part of, the Company to and for the benefit of such
underwriters, shall also be made to and for the benefit of such holders of
Registrable Securities.
3.5. Participation. In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act, the Company will give the holders of Registrable Securities on whose behalf
such Registrable Securities are to be so registered and their underwriters, if
any, and their respective counsel and accountants, the opportunity to
participate
in the preparation of such registration statement, each prospectus included
therein or filed with the Commission, and each amendment thereof or supplement
thereto, and will give each of them such access to its books and records and
such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of such holders and such underwriters or
their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
3.6. Registration Expenses. The Company will pay all Registration
Expenses (as defined below) in connection with all registrations effected
pursuant to Section 1 or Section 2.
4. Indemnification and Contribution.
4.1. Indemnification by the Company. In the event of any registration of
any Registrable Securities under the Securities Act pursuant to Section 1 or 2
hereof, the Company will, and hereby does, indemnify and hold harmless the
seller
of such securities, its partners, directors and officers, each other Person who
participates, on behalf of such seller, as an underwriter, broker or dealer in
the offering or sale of such securities and each other Person, if any, who
controls such seller or any such participating Person within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller or any such partner, director or officer or
participating or controlling Person may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained or
incorporated by reference in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus
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or final prospectus included therein, or any related summary prospectus, or any
amendment or supplement thereto, or any document incorporated by reference
therein, or (ii) 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 will reimburse such seller and each such partner, director,
officer, participating Person and controlling Person for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding, provided that
the Company shall not be liable to any such indemnified party in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by such seller 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 such seller or any such
partner, director, officer, participating Person or controlling Person and shall
survive the transfer of such securities by such seller.
4.2. Indemnification by Sellers. The Company may require, as a condition
to including any Registrable Securities in any registration statement filed
pursuant to Section 1 or 2 hereof, that the Company shall have received an
undertaking satisfactory to it from the prospective seller of such securities,
to indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 4.1 hereof) the Company, each officer and director of the
Company, and each other Person, if any, who controls the Company within the
meaning of the Securities Act, with respect to any statement in or omission from
such registration statement, any preliminary prospectus or final prospectus
included therein, or any amendment or supplement thereto, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such seller
specifically stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement; provided, that the liability of any seller shall not
exceed the proceeds received by such seller from the sale of Registrable
Securities giving rise to the claims hereunder. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the
Company or any such director, officer or controlling Person and shall survive
the
transfer of such securities by such seller.
4.3. Notice and Defense of Claims. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim of the type referred to in the preceding subsections of this
Section 4 such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its
obligations under the preceding subsections of this Section 4 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, the
indemnifying party will 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
indemnifying party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense
thereof, provided, however, that if any indemnified party reasonably believes
that it is advisable for such indemnified party to be represented by separate
counsel because of a potential conflict of interest or if the indemnifying party
shall fail to assume responsibility for such defense, such indemnified party may
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retain counsel satisfactory to such indemnified party who will represent such
indemnified party, and the indemnifying party shall pay all fees and expenses of
such counsel promptly as statements therefor are received. No indemnifying
party
will consent to entry of any judgment or enter into any settlement which does
not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation.
4.4. Contribution. If the indemnification provided for in Section 4.1 or
4.2 hereof is unavailable to a party that would have been an indemnified party
under any such section in respect of any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) referred to therein, then each
party that would have been an indemnifying party thereunder shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities
(or actions or proceedings in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and such indemnified party on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof).
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission
or alleged omission to state a material fact relates to information supplied by
the indemnifying party or such indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company agrees that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the preceding sentence. The
amount paid or payable by an indemnified party as a result of the losses,
claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to above in this Section 4.4 shall include any legal or other expenses
reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim (which shall be limited as provided in Section 4.3
hereof if the indemnifying party has assumed the defense of any such action in
accordance with the provisions thereof). No Person that is a seller of
Registrable Securities shall be required to contribute any amount in excess of
the amount by which the net proceeds from the offering received by it exceed the
amount of any damages which such Person has otherwise been required to pay by
reason of its indemnification obligations under this Section 4. No Person
guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
5. Rule 144 Requirements. The Company shall:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(ii) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(iii) furnish to any holder of Registrable Securities upon request
a written statement by the Company as to its compliance with the reporting
requirements of said Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other
reports and documents of the Company as such holder of Registrable Securities
may
reasonably request to avail itself of any similar rule or regulation of the
Commission allowing it to sell any such Registrable Securities without
registration.
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6. Definitions. For purposes of this Agreement, the following terms
shall
have the meanings specified below:
6.1. Commission. The term "Commission" shall mean the Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act.
6.2. Initiating Holder. The term "Initiating Holder" shall mean a Person
or Persons who shall request registration under Section 1.
6.3. Person. The term "Person" shall mean an individual,
partnership, corporation, association, trust, joint venture, unincorporated
organization, and any government,
governmental department or agency or political subdivision thereof.
6.4. Registrable Securities. The term "Registrable Securities" shall mean
(i) any Common Stock issued in full or partial satisfaction of the Facility Note
or issued or issuable in exchange for or upon transfer of any Registrable
Securities or (ii) any Common Stock or other common equity securities issued or
issuable with respect to any Registrable Securities by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise. As to any
particular
Registrable Securities, once issued such securities shall cease to be
Registrable
Securities when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (ii) they shall have been distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act, or (iii) they shall
have ceased to be outstanding.
6.5. Registration Expenses. The term "Registration Expenses" shall mean
all expenses incident to performance of or compliance with Sections 1, 2 and 3
hereof by the Company, including without limitation all registration and filing
fees, all fees and expenses of complying with securities or blue sky laws and
any
other expenses of underwriters customarily reimbursed by an issuer in a
secondary
offering, all printing expenses, all messenger and delivery expenses, the fees
and disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits required by or
incident
to such performance and compliance, fees and disbursements of one counsel for
the
holders of Registrable Securities on whose behalf Registrable Securities are
being registered, but excluding the fees and disbursements of counsel for the
holders on whose behalf Registrable Securities are being registered other than
the one referred to above and excluding any underwriting discounts and
commissions and applicable transfer taxes, if any, each of which shall be borne
by the holders of the Registrable Securities in all cases.
7. Securities Act. The term "Securities Act" shall mean the Securities
Act of 1933, or any successor federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
8. Notices. Any notice or other communication in connection with this
Agreement shall be deemed to be delivered if in writing (or in the form of a
telex or telecopy) addressed as provided below and if either (a) actually
delivered at said address or (b) in the case of a letter, three business days
shall have elapsed after the same shall have been deposited in the United States
mails, postage prepaid and registered or certified:
If to the Company, to it at 222 Berkeley Street, Boston, Massachusetts
02116, to the attention of the General Counsel, or at such other address as the
Company shall have specified by notice actually received by the addressor prior
to the giving of the applicable notice or communication.
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If to Foothill, to it at 11111 Santa Monica Boulevard, Suite 1500, Los
Angeles, California 90025-3333, to the attention of the Business Finance
Division Manager, or at such other address as it shall have specified by notice
actually received by the addressor prior to the giving of the applicable notice
or communication.
If to any other holder of record of any Registrable Security, to it at its
address set forth in the stock register maintained by the Company or its
transfer
agent.
9. Amendments. Any term of this Agreement may be amended, and the
observance of any term of this Agreement may be waived, only with the written
consent of the Company and the holders of a two-thirds of the Registrable
Securities; provided, that the consent of all holders of Registrable Securities
shall be required to amend Section 1 or Section 2. Any amendment or waiver
effected in accordance with this Section 8 shall be binding upon the Company and
each holder of any Registrable Security.
10. Miscellaneous. This Agreement sets forth the entire understanding of
the parties hereto with respect to the transactions contemplated hereby. The
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of any other term or provision hereof. The
headings in this Agreement are for convenience of reference only and shall not
alter or otherwise affect the meaning hereof. This Agreement may be executed in
any number of counterparts which together shall constitute one instrument and
shall be governed by and construed in accordance with the domestic substantive
laws of The Commonwealth of Massachusetts, and shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns. In
addition, whether or not any express assignment has been made, provisions of
this
Agreement that are for your benefit as the holder of any Registrable Security
shall also inure to the benefit of, and be enforceable by, all subsequent
holders
of Registrable Securities.
IN WITNESS WHEREOF, the undersigned have cause this Agreement to be
executed under seal by their respective duly authorized officers as of the day
and year first above written.
ROBERTSON-CECO CORPORATION
/s/ George S. Pultz
By:-------------------------
Title: Vice President
FOOTHILL CAPITAL CORPORATION
/s/ Jeff Nikora
By:---------------------------
Title: Vice President
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