Exhibit 2.2
WESTOWER CORPORATION
REGISTRATION RIGHTS AGREEMENT
DATED
AS OF
MAY 29, 1998
CONTENTS
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l. Certain Definitions.............................................. 1
2. Form S-3 Registration and Listing of the Company's Shares........ 2
3. Piggyback Registration........................................... 2
4. Obligations of the Company....................................... 3
5. Obligations of the Holders....................................... 4
6. Expenses of Registration......................................... 4
7. Blackout Period.................................................. 4
8. Delay of Registration............................................ 5
9. Indemnification.................................................. 5
10. Reports Under the Act............................................ 7
11. Assignment of Registration Rights................................ 7
12. "Market Stand-Off" Agreement..................................... 7
13. Notices.......................................................... 8
14. Amendments and Waivers........................................... 8
15. Severability..................................................... 8
16. Governing Law.................................................... 8
17. Counterparts..................................................... 9
18. Entire Agreement................................................. 9
WESTOWER CORPORATION
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is entered into as of May 29, 1998, by
and among WESTOWER CORPORATION, a Washington corporation (the "COMPANY"), and
the parties listed on Schedule A hereto, as at any time amended (collectively,
the "STOCKHOLDERS" and each individually a "STOCKHOLDER").
RECITALS
A. The Company is proposing to issue and sell, in exchange for all the
issued and outstanding shares of the stock of MJA Communications Corp., a
Florida corporation ("MJA") held of record by the Stockholders, newly authorized
shares of its common stock (the "WESTOWER SHARES") to the Stockholders.
B. The Company and the MJA Stockholders desire to enter into this
Registration Rights Agreement to facilitate the Share Exchange between MJA and
Westower.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS
For purposes of this Agreement:
(a) The term "ACT" means the Securities Act of 1933 as amended, or any
similar federal statute and the rules and regulations of the SEC thereunder, all
as the same shall be in effect at the time.
(b) The term "CLOSING DATE" means the date on which the sale of the
Westower Shares occurs.
(c) The term "FORM S-3" means such form under the Act as in effect on
the date hereof or any registration form under the Act subsequently adopted by
the SEC that similarly permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(d) The term "HOLDER" means any person owning or having the right to
acquire Registrable Securities who is a party to this Agreement as of the date
hereof or who
may be added as a party hereto pursuant to the terms of this Agreement, and any
assignee thereof in accordance herewith.
(e) The term "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a Registration Statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such Registration Statement or document.
(f) The term "REGISTRABLE SECURITIES" means any common stock of the
Company issued or issuable in exchange for or in replacement of, the Westower
Shares, excluding in all cases, however, (i) any Registrable Securities sold by
a person 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 sold to the public pursuant to Rule
144 promulgated under the Act, or (iii) any Registrable Securities which may be
sold in the public market in a three-month period without registration under the
Act pursuant to Rule 144.
(g) The term "REGISTRATION STATEMENT" means a registration statement
on Form S-3, or other form appropriate for registration of the Registrable
Securities for resale to the public allowing for incorporation of information by
reference, under the Act.
(h) The term "SEC" means the United States Securities and Exchange
Commission or any other United States federal agency at the time administering
the Act.
2. FORM S-3 REGISTRATION AND LISTING OF THE COMPANY'S SHARES
(a) The Company shall subject to the limitations set forth below, use
all commercially reasonable efforts to file with the SEC, within one hundred and
eighty (180) days after the Closing Date, a Registration Statement on Form S-3.
To the extent that any of the Registrable Securities are not listed with the
American Stock Exchange on the date of this Agreement, on or before the date
that the Company files the Registration Statement on Form S-3, the Company shall
file with the American Stock Exchange a listing application with respect to such
shares.
(b) Notwithstanding the foregoing, the Company shall not be obligated
to effect any such registration pursuant to this Section 2 if (i) Form S-3 is
not available for such offering by the Holders, or (ii) the Company shall
furnish a certificate signed by the President 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 such Registration
Statement to be filed and it is therefore essential to defer the filing of such
Registration Statement, in which event the Company shall have the right to defer
such filing for up to two periods of no more than 120 days each after delivery
of such certificate under this Section 2.
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3. PIGGYBACK REGISTRATION
If (but without any obligation to do so) the Company decides to register
(including for this purpose a registration effected by the Company for
shareholders other than the Holders) any of its common stock on a form that
would be suitable for a registration involving Registrable Securities, the
Company shall promptly give each Holder written notice thereof. Upon the written
request of each such Holder given within 20 days after mailing of such written
notice by the Company, the Company shall use commercially reasonable efforts to
cause to be registered under the Act all of the Registrable Securities specified
in such written request. 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, the Company shall have no obligation under this Section
3 to continue with the registration of the Registrable Securities.
4. OBLIGATIONS OF THE COMPANY
Whenever required under this Agreement 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 on Form S-3
with respect to such Registrable Securities and, subject to reasonable diligence
and practicality, use its commercially reasonable efforts to cause such
Registration Statement to become effective, and keep such Registration Statement
effective until the date that is the earlier of: (1) the date on which all of
the Registrable Securities have been sold by the Stockholders or (2) one year
after the Closing Date.
(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 all securities covered by such Registration
Statement.
(d) Use commercially reasonable efforts to register and qualify the
securities covered by such Registration Statement under such 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 in connection therewith
or as a condition thereto 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
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managing underwriter(s) of such offering. Each Holder participating in such
registration shall also enter into and perform its obligations under such an
agreement.
(f) Notify each Holder of Registrable Securities covered by such
Registration Statement, during the time when a prospectus relating thereto
covered by such Registration Statement is required to be delivered under the
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 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) At the request of any Holder selling Registrable Securities in
such Registration, furnish on the date that such Registrable Securities are
delivered to the underwriters for sale in connection such registration (i) an
opinion, dated such date, of legal counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given by
Company counsel to underwriters in an underwritten public offering, addressed to
the Holders 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, addressed to the Holders.
5. OBLIGATIONS OF THE HOLDERS
It shall be a condition precedent to the obligations of the Company to take
any action pursuant to this Agreement that the selling Holders shall furnish to
the Company such information regarding themselves, the Registrable Securities
held by them and the intended method of disposition of such securities as shall
be reasonably required to effect the registration of their Registrable
Securities and to execute such documents in connection with such registration as
the Company may reasonably request.
6. EXPENSES OF REGISTRATION
In connection with any registration pursuant to this Agreement, the Company
shall be responsible for the payment of all expenses of the registration, with
the exception of (a) underwriting, broker or dealer discounts and commissions,
which shall be paid by the Company, the Holders and any other selling holders of
the Company's securities in proportion to the aggregate value of the securities
offered for sale by each of them, and (b) the fees and expenses of more than one
law firm acting as counsel to the selling Holders selected by a majority in
interest of the selling Holders, which additional counsel, if any, shall be paid
by the Holder or Holders that engaged such counsel. The expenses to be paid by
the Company shall include, without limitation, all registration, filing and
qualification fees, printing and accounting fees, the fees and disbursements of
counsel for the Company and the fees and disbursements of one counsel for the
selling Holders.
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7. BLACKOUT PERIOD
At any time after the effective date of the Registration Statement, if the
Company is negotiating or involved in a significant transaction ("SIGNIFICANT"
for purposes of this Section being defined as an acquisition or disposition of,
or a merger with, a business entity having assets or revenues exceeding 10% of
the Company's consolidated assets or consolidated revenues) on written notice
from the Company that it requires the suspension by the Stockholders of the
distribution of any of the Westower Shares, then the Stockholders shall cease
distributing the Westower Shares for such period of time (the "BLACKOUT
PERIOD"), not to exceed 120 days from the time notice is sent until the Company
informs the Stockholders that the Blackout Period has been terminated. Upon
notice by the Company to the Stockholders of such determination, the
Stockholders covenant and agree that they shall (a) keep the fact of any such
notice strictly confidential (b) promptly halt any offer, sale, trading or
transfer of any of the Westower Shares for the duration of the Blackout Period,
and (c) promptly halt any use, publication, dissemination or distribution of the
shelf registration provided for herein, each prospectus included therein, and
any amendment or supplement thereto by it and any of its affiliates for the
duration of the Blackout Period.
8. DELAY OF REGISTRATION
No Holder shall have any right to obtain or seek an injunction restraining
or otherwise delaying any such registration as the result of any controversy
that might arise with respect to the interpretation or implementation of this
Agreement.
9. INDEMNIFICATION
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
(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 Securities Exchange Act of 1934, as amended (the
"1934 ACT"), against any losses, claims, damages or liabilities (joint or
several) (collectively, "LOSSES") to which they may become subject under the
Act, the 1934 Act or other federal or state law, insofar as such Losses arise
out of or are based upon any of the following statements, omissions or
violations (collectively, a "VIOLATION"): (i) any statement or alleged
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, untrue in light of the circumstances under
which they were made, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or (iii) any violation or alleged violation by the Company of the
Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Act, the 1934 Act or any state securities law. The
Company will reimburse each such Holder, underwriter or controlling
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person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any Losses; provided, however, that the
indemnity agreement contained in this Section 9(a) shall not apply to amounts
paid in settlement of any such Losses 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 Losses to the extent
the Losses arise out of or are based upon a Violation that occurs in reliance
upon and in conformity with written information furnished expressly for use in
connection with such registration by, or on behalf of, any such Holder,
underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, its officers, directors, agents and employees,
each person, if any, who controls the Company within the meaning of the Act,
each underwriter and each other Holder selling securities in such Registration
Statement, and any person who controls such Holder, against any Losses to which
the Company, such officer, director, agent, employee, controlling person,
underwriter or other selling Holder or person controlling such other selling
Holder may become subject under the Act, the 1934 Act or other federal or state
law, insofar as such Losses arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by, or on
behalf of, such Holder expressly for use in connection with such registration;
and each such Holder will reimburse any legal or other expenses reasonably
incurred by the Company, its officers, directors, agents, employees, persons
controlling such other selling Holder, underwriters or other selling Holders or
person controlling such other selling Holder in connection with investigating or
defending any such Losses; provided, however, that (i) the indemnity agreement
contained in this Section 9(b) shall not apply to amounts paid in settlement of
any such Losses if such settlement is effected without the consent of the
Holder, which consent shall not be unreasonably withheld and (ii) the
obligations of such Holders hereunder shall be limited to an amount equal to the
gross proceeds before expenses and commissions to each such Holder of
Registrable Securities sold as contemplated herein.
(c) Promptly after receipt by an indemnified party under this Section
9 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 9, 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 notified, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if, in the opinion of counsel for the indemnifying
party, 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
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reasonable period of time of the commencement of any such action shall relieve
such indemnifying party of any liability to the indemnified party under this
Section 9 to the extent prejudicial to its ability to defend such action, 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 9.
10. REPORTS UNDER THE ACT
With a view to making available to the Holders the benefits of SEC Rule 144
promulgated under the Act and any other rule or regulation of the SEC that may
at any time permit a Holder to sell securities of the Company to the public
without registration pursuant to the Act, the Company agrees to use commercially
reasonable efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after 90 days from the
effective date of the first Registration Statement filed by the Company for the
offering of its securities to the general public;
(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, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of the 1934 Act (at any time
after 90 days from the date on which it becomes subject to such reporting
requirements),(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 that permits the selling of any such
securities without registration pursuant to Rule 144.
11. ASSIGNMENT OF REGISTRATION RIGHTS
The rights to cause the Company to register Registrable Securities pursuant
to this Agreement may be assigned by a Holder to a transferee or assignee of
such securities who shall, upon such transfer or assignment, be deemed a Holder
under this Agreement; provided that the Company is, within a reasonable period
of 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; provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act and that such transferee or assignee is either (a) a
member of the immediate family or a trust for the benefit of any Holder that is
an individual, or (b) a transferee or assignee that after the transfer or
assignment holds (i) all of the Registrable Securities of the transfer, (ii)
Registrable Securities prior to the transfer, or (iii) at least 10% of the
outstanding equity securities of the Company immediately after such transfer.
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12. NOTICES
Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon
personal delivery to the party to be notified or upon deposit with the United
States Post Office, postage prepaid, registered or certified with return receipt
requested and addressed to the party to be notified at the address indicated for
such party on the signature page hereof or on SCHEDULE A hereto, or at such
other address as such party may designate by ten days' advance written notice to
the other parties given in the foregoing manner.
13. AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended and the observance of any term
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 holders of a majority of the Registrable Securities outstanding. Additional
Holders may be added to this Agreement with such consent by amending SCHEDULE A
hereto and adding a signature page executed by such additional Holder.
14. SEVERABILITY
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement, and
the balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
15. GOVERNING LAW
This Agreement shall be governed by and construed under the laws of the
State of Washington as applied to agreements among Washington residents entered
into and to be performed entirely within the State of Washington.
16. 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.
17. ENTIRE AGREEMENT
This Agreement constitutes the full and entire understanding and agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COMPANY:
WESTOWER CORPORATION
/s/ Xxxxx Xxxxx
By:_____________________________________________
XXXXX XXXXX
Chief Financial Officer
Its:____________________________________________
Address:
0000 000 Xxxxx X.X.
____________________________________________
Xxxxxxx, XX 00000
____________________________________________
STOCKHOLDERS:
/s/ Xxxxxxx X. Xxxxxxxx
________________________________________
XXXXXXX X. XXXXXXXX
0000 Xxxxxxx Xxxx
Xxxx Xxxxx Xxxxxxx, XX 00000
/s/ Xxxxxxxxx X. Xxxxxxxx
_________________________________________
XXXXXXXXX X. XXXXXXXX
0000 Xxxxxxx Xxxx
Xxxx Xxxxx Xxxxxxx, XX 00000
/s/ Xxxx Xxxxxxxx, III
__________________________________________
XXXX XXXXXXXX, III
X.X. Xxx 00000
Xxxx Xxxx Xxxxx, XX 00000
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SCHEDULE A
MINIMUM
NAME OF STOCKHOLDER NUMBER OF WESTOWER SHARES
---------------------------------- -------------------------
Xxxxxxx X. Xxxxxxxx and 337,470
Xxxxxxxxx X. Xxxxxxxx
Xxxx Xxxxxxxx, III 59,553
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Total Shares: 397,023
