EXHIBIT 3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, (the "Agreement"), dated as of October 28,
1998 between Hi-Rise Recycling Systems, Inc., a Florida corporation (the
"Company"), and the Persons set forth on Annex I attached hereto (collectively,
the "Holders" and each a "Holder").
1. BACKGROUND. The Company is a party to a certain Securities Purchase
Agreement (this term and all other capitalized terms used herein without
definition having the meaning specified in Section 7 hereof), which governs
certain rights and obligations of the Company and the Holders. The Holders own
warrants to purchase shares of Common Stock as set forth on Annex II attached
hereto.
2. REGISTRATION RIGHTS.
2.1. INCIDENTAL (PIGGYBACK) REGISTRATION. If at any time, the Company
proposes to register any of its securities under the Securities Act of 1933, as
amended (the "Securities Act"), for public offering and sale, the Company shall
give notice to the Holders of its intention to effect such a registration prior
to the filing with the Securities and Exchange Commission (the "SEC") of such
registration statement. Notwithstanding the foregoing, a piggyback registration
pursuant to this Section 2.1 shall not include any registration statement (i) on
Form S-8 or any successor form to such form, (ii) on Form S-4 or any successor
form to such form, (iii) filed in connection with an exchange offer or an
offering of Common Stock or of securities convertible or exchangeable into
Common Stock made solely to its existing stockholders in connection with a
rights offering or solely to the Company's employees, or a post-effective
amendment to any then effective registration statement. Upon written request of
any Holder, given within 7 days after receipt from the Company of such notice,
the Company shall use its best efforts to cause the number of such Holder's
Registrable Securities referred to in such request to be included in such
registration statement; provided, however, that in the event that the offering
pursuant to such registration statement shall be underwritten and the
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration pursuant to this
Section 2.1 exceeds the number of securities which can be sold in the offering
without adversely affecting the offering price or the marketing of the Company's
securities, the Company may first include in such registration all securities
the Company proposes to sell, and such Holder shall accept a reduction (pro rata
with the other Holders who shall have duly requested to include Registrable
Securities in such registration and other holders of the Company's equity
securities entitled to register such securities on such registration statement
whose registration rights are not subordinate to such Holder's ("parri passu
holders"), on the basis of the proportion that the market value (based upon the
proposed offering price of such securities or the mid-point of the range of the
proposed offering prices if any of such securities (the "Market Value")) of each
security holder's aggregate securities requested to be registered bears to the
Market Value of the aggregate amount of all such equity securities (other than
those to be sold for the Company's account) as to which registration is sought
by the Holders and the parri passu holders) in the number of securities to be
included in such registration, which reduction may, if necessary, be total.
Nothing in this Section
2.1 shall limit the Company's ability to withdraw, or temporarily cease to seek
effectiveness of, a registration statement it has filed either before or after
its effectiveness.
2.2. DEMAND REGISTRATION. (a) Except as provided in Section 2.2(b)
below, upon the written request of the Holders owning not less than ten percent
(10%) of the Registrable Securities that the Company effect pursuant to this
Agreement the registration of the resale of the Registrable Securities under the
Securities Act (which request shall specify the Registrable Securities so
requested to be registered by each such Holder, the Proposed Amounts thereof and
the intended method of disposition by such Holders), the Company will, as
expeditiously as reasonably possible, use its best efforts to effect the
registration under the Securities Act of the resale of the Proposed Amount of
Registrable Securities, for disposition in accordance with the intended method
of disposition stated in such request; provided, however that (i) if in the good
faith judgment of the Board of Directors of the Company, such registration would
be detrimental to the Company and the Board of Directors of the Company
concludes, as a result, that it is in the best interests of the Company to defer
the filing of such registration statement at such time, and (ii) the Company
shall furnish to such Holders a certificate signed by an executive officer of
the Company that the Board of Directors of the Company has made such a
determination and that it is, therefore, necessary to defer the filing of such
registration statement, then the Company shall have the right to defer such
filing for the period during which such registration would be detrimental,
provided that the Company may not defer the filing for a period of more than 120
days after receipt of the request of such Holders. The Company shall be entitled
to include in any registration statement filed pursuant to this Section 2.2: (A)
securities of the Company held by any other security holder of the Company, and
(B) in an underwritten public offering, securities of the Company to be sold by
the Company for its own account, except as and to the extent that (x) in the
opinion of the managing underwriter (if such method of disposition shall be an
underwritten public offering), such inclusion would adversely affect the
marketing of the Registrable Securities to be sold by such Holders or (y) in the
reasonable opinion of such Holders owning a majority of the Proposed Amount of
Registrable Securities (if such method of disposition is not an underwritten
public offering), such inclusion would adversely affect the price at which such
Registrable Securities may be sold pursuant to the plan of distribution;
provided, however, that if, after such registration statement has been filed,
the managing underwriter believes that the inclusion of all securities requested
to be included in the proposed underwritten public offering would adversely
affect the marketing of the Registrable Securities or, in the case of a
distribution that is not an underwritten public offering, if such Holders owning
a majority of the Proposed Amount of Registrable Securities reasonably believe
that the inclusion of all securities requested to be included in such
registration statement would adversely affect the price at which the Registrable
Securities may be sold pursuant to the plan of distribution, then the aggregate
amount of securities to be offered by the Company and such other security
holders of the Company shall be reduced so as to permit the offering of all
Registrable Securities requested by all the Holders of the entire Proposed
Amount of Registrable Securities without such adverse effects.
(b) The Company shall not be obligated to take any action to effect any
registration requested by the Holders pursuant to Section 2.2(a) hereof (i)
after the Company has effected two (2) such registrations pursuant to this
Agreement and each such registration has been declared or ordered effective,
(ii) for a period of two (2) years after the Company has effected one such
registration pursuant to Section 2.2(a) hereof and such registration has been
declared or ordered effective, such two year period to commence on the date the
registration statement was
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declared or ordered effective or (iii) at any time after the second anniversary
of the expiration date of the Warrants.
(c) Notwithstanding any other provision of this Agreement to the
contrary, a registration requested pursuant to this Section 2.2 shall not be
deemed to have been effected (i) unless it has become effective, provided that a
registration that does not become effective after the Company has filed a
registration statement with respect thereto by reason of the refusal of Holders
owning a majority of the Proposed Amount to proceed shall be deemed to have been
effected by the Company unless the Holders shall have elected to pay all Company
Registration Expenses in connection with such registration, (ii) if after it has
become effective such registration is interfered with by any stop order,
injunction or other order or requirement of the SEC or other governmental agency
or court for any reason other than a misrepresentation or an omission by the
Holders, or (iii) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration are not satisfied other than by reason of some wrongful act or
omission, or act or omission in bad faith, by the Holders.
2.3. HOLDBACK AGREEMENTS. Each Holder, if, as and when such Holders
Registrable Securities are covered by a Registration Statement, agrees, if
necessary to effectuate an underwritten offering of the Company's equity
securities in the reasonable judgment and at the request of the managing
underwriter or underwriters (to the extent timely notified in writing by such
managing underwriter or underwriters), not to effect any public sale or
distribution of securities of the Company of any class included in such
Registration Statement, including a sale pursuant to Rule 144 (or any similar
rule then in force) under the Securities Act, except as part of such
underwritten registration, during the 10-day period prior to, and a period of up
to 120 days (as reasonably determined by the Company and the managing
underwriter or underwriters) beginning on the effective date of any such
underwritten offering (any such period in respect of a Registration Statement
being referred to as a "Holding Period"); PROVIDED, however, that the period of
time for which the Company is to maintain the effectiveness of such Registration
Statement pursuant to Section 2.4 shall be increased by the length of the
applicable Holding Period.
2.4. REGISTRATION PROCEDURES. Subject to the limitations set forth
elsewhere herein, if and whenever the Company is required by the provisions of
this Agreement to use its best efforts to effect or cause the registration of
any Registrable Securities under the Securities Act as provided in this
Agreement, the Company will, as expeditiously as possible:
(a) in the case of a registration under Section 2.2 hereof, prepare and
file with the SEC (such filing to be made within 60 days after the initial
request by the requesting Holders pursuant to Section 2.2(a) a registration
statement with respect to such Registrable Securities on a form appropriate to
permit such Holders to sell the Proposed Amount in accordance with such Holders'
intended method of distribution and use its best efforts to cause such
registration statement to become and remain effective;
(b) prepare and file with the SEC 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 for such period
as shall be requested by the Holders owning the Proposed Amount, which period
shall not exceed twelve (12) months and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all securities
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covered by such registration statement during such period;; provided, however,
that if such registration has been effected pursuant to Form S-3 (or any
successor form), then such period of effectiveness shall be until the earlier of
(i) 24 months or (ii) the date that the offering is completed or terminated;
(c) furnish to a single firm of counsel, initially Steel Xxxxxx & Xxxxx
LLP, or such other counsel thereafter designated by the Holders who hold a
majority of the Registrable Securities being sold (the "Holder's Counsel"), and
each underwriter of the securities being sold by such Holders, at least 5 days
prior to the filing thereof, such number of copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included in
such registration statement (including each preliminary prospectus), in
conformity with the requirements of the Securities Act, and such other
documents, as such counsel may reasonably request, in substantially the form in
which they are proposed to be filed with the SEC, in order to facilitate the
public sale or other disposition of the Registrable Securities owned by such
Holders;
(d) use its best efforts to register or qualify such Registrable
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as each underwriter of the securities being
sold by such Holders shall reasonably request, and do any and all other acts and
things which may be necessary or advisable to enable such Holders and such
underwriter to consummate the disposition in such jurisdictions of such
Registrable Securities except that the Company shall not for any purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this clause (d), it would not be
obligated to be so qualified, or subject itself to taxation in any such
jurisdiction;
(e) use its best efforts to cause such Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
disposition of such Registrable Securities;
(f) notify the Holders owning the Proposed Amount, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the Company's becoming aware that 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 light of the
circumstances then existing, and promptly prepare and furnish to such Holders
and each underwriter a reasonable amount of copies of a prospectus supplement or
amendment 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;
(g) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to the Holders, as soon as
reasonably practicable, an earnings statement covering the period of at least
twelve months, but not more than eighteen months, beginning with the first day
of the Company's first calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act;
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(h) enter into such agreements (including an underwriting agreement in
customary form) and take such other actions as the Holders shall reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities;
(i) to use its best efforts to furnish to the Holders owning the
Proposed Amount an opinion from the Company's counsel and a "cold comfort"
letter from the Company's independent public accountant (in accordance with SAS
72), addressed to such Holders, in customary form and covering such matters of
the type customarily covered by such opinions and "cold comfort" letters, in
each case for the type of offering contemplated (i.e., underwritten or
self-underwritten), as such Holders shall reasonably request;
(j) make available for inspection by the Holders, by any other
underwriter participating in any disposition to be effected pursuant to such
registration statement, and by any attorney, accountant or other agent retained
by such Holders or any such underwriter, all reasonably pertinent financial and
other records, reasonably pertinent corporate documents and properties of the
Company, and cause all of the Company's officers, directors, employees and the
independent public accountants who have audited its financial statements to
supply all information reasonably requested by such Holders or any such
underwriter, attorney, accountant or agent in connection with such registration
statement; provided, however, that each such Holder and each such representative
of such Holder, underwriter, attorney, accountant or agent must execute and
deliver to the Company a confidentiality agreement in form and substance
reasonably acceptable to the Company agreeing to keep any such information and
records concerning the Company confidential;
(k) permit such Holders to participate in the preparation of such
registration or comparable statement;
(l) at or prior to the effective date of the registration use
commercially reasonable efforts to cause all Registrable Securities covered by
such Registration Statement to be (i) listed on each securities exchange, if
any, on which similar securities issued by the Company are then listed or (ii)
authorized to be quoted on the National Association of Securities Dealers
Automated Quotation System if the securities so qualify and if the Company does
not then have similar securities listed on any national securities exchange; and
(m) in the case of an underwritten offering, enable the Registrable
Securities to be in such denominations or such number of shares and registered
in such names as the underwriters may request at least two business days prior
to the sale of the Registrable Securities.
In the case of an underwritten offering, the underwriters shall be selected
by the Company and reasonably acceptable to such Holders owning a majority of
the Proposed Amount of Registrable Securities.
The Holders owning the Proposed Amount shall, upon receipt of any
notice from the Company of the happening of any event of the kind described in
subdivision (f) above, forthwith discontinue its disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Holders' receipt of the copies of the supplemented or
amended prospectus contemplated by said subdivision and, if so directed by the
Company, will
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deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Holders' possession of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the period
mentioned in subdivision (b) above shall be extended by the number of days
during the period from and including the date of the giving of such notice to
and including the date when such Holders shall have received the copies of the
supplemented or amended prospectus contemplated by subdivisions (f) above.
The Holders shall enter into such customary agreements as requested by the
Company in connection with the registration of securities as contemplated by
this Agreement.
The Holders shall furnish to the Company in writing such information and
documents regarding such Holders and the distribution of such securities as may
be required to be disclosed in the registration statement in question by the
rules and regulations under the Securities Act or under any other applicable
securities or blue sky laws of the jurisdictions referred to in Section 2.3(d)
hereof. The Company may exclude from such registration the Registrable
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
If any such registration or comparable statement refers to any Holder by
name or otherwise as the holder of any securities of the Company then such
Holder shall have the right to require (i) the insertion therein of language, in
form and substance satisfactory to such Holder and presented to the Company in
writing, to the effect that the holding by such Holder of such securities is not
to be construed as a recommendation by such Holder of the investment quality of
the Company's securities covered thereby and that such holding does not imply
that such Holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such Holder by name or
otherwise is not required by the Securities Act or any similar federal statute
then in force, the deletion of the reference to such Holder.
3. REGISTRATION EXPENSES. In connection with any registration of
Registrable Securities pursuant to this Agreement the Company will, whether or
not any registration pursuant to this Agreement shall become effective, from
time to time promptly upon receipt of bills or invoices relating thereto, pay
all expenses (other than Selling Expenses) incident to its performance of or
compliance with this Agreement (the "Company Registration Expenses"), including
without limitation all registration, filing and NASD fees, fees and expenses of
compliance with securities or blue sky laws, word processing, duplicating and
printing expenses, messenger and delivery expenses, fees and disbursements of
counsel for the Company and all independent public accountants (including the
expenses of any audit and/or "cold comfort" letter) and other Persons retained
by the Company; and reasonable fees and expenses of the Holder's Counsel. In
addition, in the event that an assignment of a Registrable Security occurs
subsequent to the date of effectiveness of a Registration Statement filed
pursuant to this Agreement, the Company shall pay all reasonable expenses
necessary to amend or supplement such Registration Statement to reflect such
assignment for the first two such assignments and the transferee shall pay for
any subsequent assignments. Each Holder shall be responsible for its Selling
Expenses.
4. INDEMNIFICATION. (a) The Company will, and hereby does, indemnify, to
the extent permitted by law, each Holder, its officers and directors, if any,
and each Person, if any, who controls such Holder within the meaning of Section
15 of the Securities Act, against all losses,
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claims, damages, liabilities (or proceedings in respect thereof) and expenses
under the Securities Act, joint or several, caused by any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or prospectus (and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus or caused by 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, except insofar as such losses, claims, damages,
liabilities (or proceedings in respect thereof) or expenses are caused by any
untrue statement or alleged untrue statement or an omission or alleged omission
to state a material fact made in reliance on or in conformity with any
information furnished in writing to the Company by any of the Holders or any
participating underwriter expressly for use therein. If the offering pursuant to
any registration statement provided for under this Agreement is made through
underwriters, the Company agrees to enter into an underwriting agreement in
customary form with such underwriters and to indemnify such underwriters, their
officers and directors, if any, and each Person, if any, who controls such
underwriters within the meaning of Section 15 of the Securities Act to the same
extent as hereinbefore provided with respect to the indemnification of the
Holders, their respective officers and directors, if any, and each Person, if
any, who controls each of such Holders within the meaning of Section 15 of the
Securities Act.
(b) If for any reason the indemnity under Section 4(a) is unavailable,
then the Company shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and of the indemnified party on the other or (ii)
if the allocation provided by subdivision (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative fault of the Company on the one hand and the indemnified party on the
other but also the relative benefits received by the Company and the indemnified
party as well as any other relevant equitable considerations. 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.
(c) Each of the Holders will, and hereby does, severally but not
jointly, indemnify, to the extent permitted by law, the Company, its officers
and directors, if any, and each Person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, against all losses, claims,
damages, liabilities (or proceedings in respect thereof) and expenses under the
Securities Act, caused by any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus (and as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus or caused by 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 but only to the
extent that such losses, claims, damages, liabilities (or proceedings in respect
thereof) or expenses are caused by any untrue statement or alleged untrue
statement made in reliance on or in conformity with any information furnished to
the Company by any such Holder. If the offering pursuant to any registration
statement provided for under this Agreement is made through underwriters, each
Holder agrees to enter into an underwriting agreement in customary form with
such underwriters and to indemnify such underwriters, their officers and
directors, if any, and each Person who controls such underwriters within the
meaning of Section 15 of the Securities Act to the same extent as hereinbefore
provided with respect to the indemnification of the Company, its
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officers and directors, if any, and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act.
(d) If for any reason the indemnity under Section 4(c) is unavailable,
then any such Holder shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative fault
of such Holder on the one hand and of the indemnified party on the other or (ii)
if the allocation provided by subdivision (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative fault of such Holder on the one hand and the indemnified party on the
other but also the relative benefits received by such Holder and the indemnified
party as well as any other relevant equitable considerations. 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.
(e) The Holders and the Company shall make payments of all amounts
required to be made pursuant to the foregoing provisions of this Section 4 to or
for the account of the indemnified party from time to time promptly upon receipt
of bills or invoices relating thereto or when otherwise due and payable.
5. LIMITATIONS ON SALE OR DISTRIBUTION OF SECURITIES. If a registration
under this Agreement shall be in connection with an underwritten public offering
of securities for the Company's or any other security holder's account (other
than any of the Holders), the Holders shall be deemed to have agreed by
acquisition of such Registrable Securities not to effect any public sale or
distribution, including any sale pursuant to Rule 144 under the Securities Act,
of any Registrable Securities, during such period prior and subsequent to the
commencement of the offering of securities pursuant to such registration
statement as may be reasonably requested by the underwriters thereof, and in all
cases to otherwise comply with all applicable rules under the Securities Act and
the Exchange Act, including, without limitation, Regulation M.
6. REGISTRATION RIGHTS TO OTHERS. If the Company shall at any time
hereafter provide to any holder of any securities of the Company rights with
respect to the registration of such securities under the Securities Act, such
rights shall not be superior to and shall not be in conflict with any of the
rights provided in this Agreement to the Holders.
7. DEFINITIONS. The following terms have the following respective meanings
for the purpose of this Agreement:
CREDIT AGREEMENT: That certain Credit Agreement, dated as of the date
hereof, among the Company, the other parties named as Borrowers thereto, General
Electric Capital Corporation, NationsBank, National Association, and Key
Corporate Capital Inc. and the other parties which may from time to time be
Lenders thereunder, and General Electric Capital Corporation, as Administrative
Agent, and NationsBank, National Association, as Revolver Agent)
EXCHANGE ACT: The Securities Exchange Act of 1934 or any similar federal
statute as at the time in effect, and any reference to a particular Section of
such Act shall include a reference to the comparable Section, if any, of any
such similar federal statute.
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PERSON: The term "Person" shall have the meaning ascribed to such term in
the Credit Agreement.
PROPOSED AMOUNT: With respect to the Registrable Securities, the aggregate
amount of Registrable Securities that the Holders thereof shall request the
Company to register pursuant to Section 2.
REGISTRABLE SECURITIES: The shares of Common Stock of the Company
underlying or issued pursuant to the exercise of the warrants and the additional
warrants to purchase such Common Stock issued or issuable by the Company to the
Holders pursuant to the Securities Purchase Agreement (the "Shares"), including
any additional securities of the Company issued in respect of the Shares,
including by way of a stock split, dividend or other recapitalization or
exchange of securities with or by the Company. 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 if the Holders may sell the Registrable Securities without restriction
pursuant to Rule 144K under the Securities Act (or successor thereto) and the
restrictive legends have been removed from the certificates representing such
securities, (iii) they shall have been otherwise transferred, new certificates
for them not bearing a legend restricting further transfer shall have been
delivered by the Company and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any similar
state law then in force, or (iv) they shall have ceased to be outstanding.
SECURITIES ACT: The Securities Act of 1933, as amended or any similar
Federal statute as at the time in effect, and any reference to a particular
Section of such Act shall include a reference to the comparable Section, if any,
of any such similar Federal statute.
SECURITIES PURCHASE AGREEMENT: That certain Securities Purchase Agreement
dated as of October 28, 1998 by and among the Company and the purchasers named
therein.
SELLING EXPENSES: All underwriting discounts, selling commissions and stock
transfer taxes applicable to the securities registered by such Holders.
8. AMENDMENTS AND WAIVERS. This Agreement may be amended by a writing
signed by both a majority of the Holders and the Company. Each Holder shall be
bound by any consent authorized by this Section 8, whether or not such
Registrable Securities shall have been marked to indicate such consent.
9. NOTICES. Except as otherwise provided herein, whenever it is provided
herein that any notice, demand, request, consent, approval, declaration or other
communication shall or may be given to or served upon any of the parties by any
other parties, or whenever any of the parties desires to give or serve upon any
other parties any communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and shall be deemed to have been validly served, given or
delivered (a) upon the earlier of actual receipt and three (3) Business Days
after deposit in the United States Mail, registered or certified mail, return
receipt requested, with proper postage prepaid, (b) one (1) Business Day after
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deposit with a reputable overnight courier with all charges prepaid or (c) when
delivered, if hand-delivered by messenger, all of which shall be addressed to
the party to be notified and sent to the address indicated on ANNEX III or to
such other address (or facsimile number) as may be substituted by notice given
as herein provided. The giving of any notice required hereunder may be waived in
writing by the party entitled to receive such notice. Failure or delay in
delivering copies of any notice, demand, request, consent, approval, declaration
or other communication to any Person designated on ANNEX III to receive copies
shall in no way adversely affect the effectiveness of such notice, demand,
request, consent, approval, declaration or other communication.
10. SPECIFIC PERFORMANCE. The parties hereto recognize and agree that money
damages may be insufficient to compensate the Holders for breaches by the
Company of the terms hereof and, consequently, that the equitable remedy of
specific performance of the terms hereof will be available in the event of any
such breach.
11. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
12. MISCELLANEOUS. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties hereto, whether so expressed or not. Each Holder may freely assign all
or a portion of its rights under this Agreement. This Agreement, the Securities
Purchase Agreement, the Warrants, the Credit Agreement and the Loan Documents
described therein embody the entire agreement and understanding between the
Company and the Holders and supersede all prior agreements and understandings
relating to the subject matter hereof. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREUNDER. The headings in
this Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
[Remainder of Page Intentionally Left Blank.
Signatures Follow on Next Page.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.
HI-RISE RECYCLING SYSTEMS, INC.
By: /s/ J. Xxxx XxXxxxx
Name: J. Xxxx XxXxxxx
Title: Chief Operating Officer
General Electric Capital
Corporation
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
NationsBank, National Association
By: /s/Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President
Key Corporate Capital Inc.
By: /s/Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
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