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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
to
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Wickes Lumber Company
(Name of Issuer)
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
967446105
(CUSIP Number)
T. Malcolm Graham, Esq.
Kirschner, Main, Petrie, Graham, Tanner & Demont
One Independent Drive, Suite 2000
Jacksonville, Florida 32202
(904) 354-4141
(Name, Address and Telephone Number of Person
Authorized to Receive Notice and Communications)
June 20, 1996
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
statement of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this statement [ ]. (A fee
is not required only if the filing person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act
of 1934 ("Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Acts (however, see the
Notes).
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CUSIP NO. 967446105
- --------------------------------------------------------------------------------
1) Name of Reporting Persons SS. or I.R.S. Identification Nos. of Above Persons
Riverside Group, Inc.
- --------------------------------------------------------------------------------
2) Check the Appropriate Row if a Member of a Group (See Instructions)
(a) X
(b)
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3) Sec Use Only
- --------------------------------------------------------------------------------
4) Source of Funds (See Instructions)
WC; OO
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5) Check if Disclosure of Legal Proceedings is Required Pursuant to Itmes 2(d)
or 2(e)
- --------------------------------------------------------------------------------
6) Citizenship or Place of Organization
Florida
- --------------------------------------------------------------------------------
Number of Shares 7) Sole Voting Power............1,749,219
Benficially Owned by 8) Shared Voting Power..........1,468,069
Reporting Person: 9) Sole Dispositive Power.......Same as #7
10) Shared Dispositive Power.....Same as #8
- --------------------------------------------------------------------------------
11) Aggregate Amount Beneficially Owned by Each Reporting Person
4,217,288
- --------------------------------------------------------------------------------
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
- --------------------------------------------------------------------------------
13) Percent of Class Represented by Amount in Row (11)
55.1
- --------------------------------------------------------------------------------
14) Type of Reporting Person (See Instructions)
CO
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2
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CUSIP NO. 967446105
- --------------------------------------------------------------------------------
1) Name of Reporting Persons SS. or I.R.S. Identification Nos. of Above Persons
American Financial Acquisition Corporation
- --------------------------------------------------------------------------------
2) Check the Appropriate Row if a Member of a Group (See Instructions)
(a) X
(b)
- --------------------------------------------------------------------------------
3) Sec Use Only
- --------------------------------------------------------------------------------
4) Source of Funds (See Instructions)
WC; OO
- --------------------------------------------------------------------------------
5) Check if Disclosure of Legal Proceedings is Required Pursuant to Itmes 2(d)
or 2(e)
- --------------------------------------------------------------------------------
6) Citizenship or Place of Organization
Delaware
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Number of Shares 7) Sole Voting Power.............0
Benficially Owned by 8) Shared Voting Power..........2,468,069
Reporting Person: 9) Sole Dispositive Power.......Same as #7
10) Shared Dispositive Power.....Same as #8
- --------------------------------------------------------------------------------
11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,468,069
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12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
- --------------------------------------------------------------------------------
13) Percent of Class Represented by Amount in Row (11)
32.6
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14) Type of Reporting Person (See Instructions)
CO
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CUSIP NO. 967446105
- --------------------------------------------------------------------------------
1) Name of Reporting Persons SS. or I.R.S. Identification Nos. of Above Persons
American Founders Life Insurance Company
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2) Check the Appropriate Row if a Member of a Group (See Instructions)
(a) X
(b)
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3) Sec Use Only
- --------------------------------------------------------------------------------
4) Source of Funds (See Instructions)
WC
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5) Check if Disclosure of Legal Proceedings is Required Pursuant to Itmes 2(d)
or 2(e)
- --------------------------------------------------------------------------------
6) Citizenship or Place of Organization
Texas
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Number of Shares 7) Sole Voting Power.............0
Benficially Owned by 8) Shared Voting Power...........0
Reporting Person: 9) Sole Dispositive Power........0
10) Shared Dispositive Power......0
- --------------------------------------------------------------------------------
11) Aggregate Amount Beneficially Owned by Each Reporting Person
0
- --------------------------------------------------------------------------------
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
- --------------------------------------------------------------------------------
13) Percent of Class Represented by Amount in Row (11)
0.0
- --------------------------------------------------------------------------------
14) Type of Reporting Person (See Instructions)
IC
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This Amendment No. 1 amends the Statement on Schedule 13D dated January
19, 1996 filed pursuant to Section 13(d) of the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder, by
Riverside Group, Inc., American Financial Acquisition Corporation and American
Founders Life Insurance Company.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 is hereby amended by adding the following paragraphs:
"The amount of funds or other consideration used in the transfer by AFL
to Laurel (as hereinafter defined) of 951,486 shares of Common Stock was an
intercompany obligation. Subsequently, these shares were distributed by Laurel
to AFAC without consideration and transferred by AFAC to Riverside for an
intercompany obligation.
"The amount of funds or other consideration used in the acquisition of
2,000,000 newly-issued shares of Common Stock by Riverside from Wickes on June
20, 1996 was $10,000,000 derived from the general corporate funds of Riverside
and AFAC, including funds derived from the Circle Transaction (as hereinafter
defined)."
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 is hereby amended by adding the following paragraphs:
"On June 6, 1996, in connection with the change of control of AFL from
Riverside to Circle Investors, Inc. (the "Circle Transaction"), (i) AFL
transferred 951,486 shares of Common Stock to Laurel Life Insurance Company,
then a wholly-owned subsidiary of AFAC ("Laurel"), in exchange for an
intercompany obligation, (ii) Laurel distributed these shares to AFAC, (iii)
AFAC transferred 1,000,000 shares of Common Stock to Riverside in exchange for
an intercompany obligation, which shares were pledged by Riverside to AFL to
secure, along with certain other collateral, an approximately $18,000,000
purchase money mortgage obligation incurred for the purchase by Riverside of
certain real estate from AFL.
"The purpose of the transfer of shares of Common Stock from AFL to AFAC
was to retain Riverside's interest in Wickes.
"Pursuant to the Stock Purchase Agreement between Riverside and Wickes
dated January 11, 1996 previously reported in this Item 4, on June 20, 1996
Riverside acquired 2,000,000 newly-issued shares of Common Stock for
$10,000,000 in cash. On the same date, these shares were transferred by
Riverside to AFAC."
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is hereby amended by adding the following paragraphs:
"On the date hereof, Riverside and its subsidiaries directly own
4,217,288 shares of Common Stock, or approximately 55.1 percent of the
outstanding shares of Common Stock. Of these 4,217,288 shares, 1,749,219 and
2,468,069 are directly owned by Riverside and AFAC, respectively. As a result
of the transactions described in Item 4 hereof, AFL no longer beneficially owns
any shares of Common Stock."
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ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is hereby amended by adding the following paragraphs:
"In connection with the Circle Transaction, (i) all of the shares of
Common Stock held by AFAC and Riverside were released from pledge under a loan
agreement with First Interstate Bank of California, N.A. and Bank of Montreal
and (ii) 1,000,000 shares of Common Stock were pledged by Riverside to AFL to
secure, along with certain other collateral, an approximately $18,000,000
purchase money mortgage obligation incurred for the purchase by Riverside of
certain real estate from AFL.
"The 2,000,000 shares of Common Stock acquired by Riverside from Wickes
pursuant to the Stock Purchase Agreement are entitled to the benefits of a
Registration Rights Agreement, a copy of which is attached hereto as
Exhibit D."
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Attached as an exhibit hereto is the following:
Exhibit Description
- ------- -----------
D Registration Rights Agreement between Riverside and Wickes
pursuant to the Stock Purchase Agreement
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: June 27, 1996 RIVERSIDE GROUP, INC.
By: /s/ Catherine J. Gray
--------------------------------
Catherine J. Gray
Vice President
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EXHIBIT D
Registration Rights Agreement
1. Introduction. Wickes Lumber Company, a Delaware corporation (the
"Company"), and Riverside Group, Inc., a Florida corporation ("Riverside"), are
parties to the Stock Purchase Agreement dated January 11, 1996 (the "Stock
Purchase Agreement"), pursuant to which the Company and Riverside have entered
into this Agreement.
Certain capitalized terms used in this Agreement are defined in Section
3 hereof; references to sections shall be to sections of this Agreement.
2. Registration under Securities Act, etc.
2.1 Registration on Request.
(a) Request. At any time or from time to time after the
date hereof, upon the written request of one or more Initiating Holders,
requesting that the Company effect the registration under the Secu- rities Act
of all or part of such Initiating Holders' Registrable Securities and
specifying the intended method of disposition thereof, the Company will
promptly give written notice of such requested registration to all registered
holders of Registrable Securities, and thereupon the Company 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;
(ii) all other Registrable Securities the holders of
which shall have made a written request to the Company for
registration thereof 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); and
(iii) all shares of Common Stock which the Company may
elect to register in connection with the offering of
Registrable Securities pursuant to this section 2.1,
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities and the
additional shares of Common Stock, if any, so to be registered, provided that
the Company shall not be required to effect a registration pursuant to this
Section 2.1 (other than Rule 415 Registrations) if three earlier registrations
shall have been effected pursuant to this Section 2.1, and further provided
that the Company shall not be required to effect any registration of
Registrable Securities pursuant to this Section 2.1 (other than pursuant to a
Rule 415 Registration) unless the aggregate number of shares of Registrable
Securities requested to be registered by all holders of Registrable
Securities is equal to or greater than 10% of the number of shares of Common
Stock outstanding at the date hereof (excluding those shares issued pursuant to
the Stock Purchase Agreement).
(b) Registration Statement Form. Registrations under this section
2.1 shall be on such appropriate registration form of the Commission (i) as
shall be selected by the Company and as shall be reasonably acceptable to the
holders of more than 50% (by number of shares) of the Registrable Securities so
to be registered and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition
specified in their request for such registration.
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The Company agrees to include in any such registration statement all
information which holders of Registrable Securities being registered shall
reasonably request (after giving due regard to the confidentiality of such
information) provided, however, that all such requests shall be in the best
interests of the Company as shall be determined in good faith by its Board of
Directors. If, in connection with any registration under section 2.1 which is
proposed by the Company to be on Form S-3 or any similar short form
registration statement which is a successor to Form S-3, the managing
underwriters, if any, shall advise the Company in writing that in their opinion
the use of another permitted form is of material importance to the success of
the offering, then such registration shall be on such other permitted form.
(c) Expenses. The Company will pay all Registration Expenses in
connection with any registration requested pursuant to this section 2.1 by any
Initiating Holders.
(d) Effective Registration Statement. A registration requested
pursuant to this section 2.1 shall not be deemed to have been effected (i)
unless a registration statement with respect thereto has become effective,
provided that a registration which does not become effective after the Company
has filed a registration statement with respect thereto solely by reason of the
refusal to proceed of the Initiating Holders (other than a refusal to proceed
based upon the advice of counsel relating to a matter with respect to the
Company) shall be deemed to have been effected by the Company at the request of
such Initiating Holders unless the Initiating Holders shall have elected to pay
all 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 Commission or other
governmental agency or court for any reason, or (iii) 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 act or omission by such Initiating Holders.
(e) Selection of Underwriters. If a requested registration
pursuant to this section 2.1 involves an underwritten offering, the
underwriter or underwriters thereof shall be selected by the holders of more
than 50% of the Registrable Securities so to be registered.
(f) Priority in Requested Registrations. If a requested
registration pursuant to this section 2.1 involves an underwritten
offering, and the managing underwriter shall advise the Company in writing
(with a copy to each holder of Registrable Securities requesting registration)
that, in its opinion, the number of securities requested to be included in such
registration (including securities of the Company which are not Registrable
Securities) exceeds the number which can be sold in such offering within a
price range acceptable to the holders of a majority of the Registrable
Securities requested to be included in such registration, the Company will
include in such registration, to the extent of the number which the Company is
so advised can be sold in such offering, (i) first, Registrable Securities
requested to be included in such registration by the holder or holders of
Registrable Securities, pro rata among such holders on the basis of the number
of such securities requested to be included by such holders; and (ii) second,
securities the Company proposes to sell and other securities of the Company
included in such registration by the holders thereof.
(g) Limitation on Demands. No Initiating Holder may make a
written request for registration pursuant to this section 2.1 during the
pendency of any other written request made pursuant to this section 2.1 and for
a period of six months after the date any Initiating Holder has delivered a
request to the Company pursuant to section 2.1 (a), other than in each case as
contemplated by clause (ii) of section 2.1(a).
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2.2 Incidental Registration.
(a) Right to Include Registrable Securities(a)Right to Include
Registrable Securities. If the Company at any time proposes to register any of
its securities under the Securities Act (other than by a registration on Form
S-4, S-8, S-14 or S-15 or any successor or similar forms and other than
pursuant to section 2.1), whether or not for sale for its own account, it will
each such time give prompt written notice to all holders of Registrable
Securities of its intention to do so and of such holders' rights under this
section 2.2. Upon the written request of any such holder made within 30 days
after the receipt 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
to effect the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the holders
thereof, 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, by inclusion of such Registrable Securities in the registration
statement which covers the securities which the Company proposes to register,
provided that if, at any time after giving written notice of its intention to
register any securities 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 registration of
such securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and, thereupon, (i) 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 (but not from its obligation to pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of any holder
or holders of Registrable Securities entitled to do so to request that such
registration be effected as a registration under section 2.1, and (ii) in the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected under this section
2.2 shall relieve the Company of its obligation to effect any registration upon
request under section 2.1. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this section 2.2.
(b) Priority in Incidental Registrations If (i) a registration
pursuant to this section 2.2 involves an underwritten offering of the
securities so being registered, 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, (ii) 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 2.4(b) or, if requested to do so, is not obligated to do so
under section 2.4(b)), and (iii) the managing underwriter of such underwritten
offering shall inform the Company and holders of the Registrable Securities
requesting such registration by letter of its belief that the distribution of
all or a specified number of such Registrable Securities concurrently with the
securities being distributed by such underwriters would interfere with the
successful marketing of the securities being distributed by such underwriters
(such writing to state the basis of such belief and the approximate number of
such Registrable Securities which may be distributed without such effect), then
the Company may, upon written notice to all holders of such Registrable
Securities, reduce pro rata (if and to the extent stated by such managing
underwriter to be necessary to eliminate such effect) the number of such
Registrable Securities the registration of which shall have been requested by
each holder of Registrable Securities so that the resultant aggregate number of
such Registrable Securities so included in such registration shall be equal to
the number of shares stated in such managing underwriter's letter.
2.3 Registration Procedures. If and whenever (a) 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 2.1 and 2.2 or (b)
there is a Requesting Holder in connection with any other proposed registration
by the Company under the Securities Act, the Company shall, as expeditiously as
possible:
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(i) prepare and (within 60 days after the end of the
period within which requests for registration may be given to
the Company, or in any event as soon thereafter as possible,
and in the case of a registration pursuant to Section 2.1,
such filing to be made within 60 days after the initial
request of one or more Initiating Holders of Registrable
Securities or in any event as soon thereafter as possible)
file with the Commission the requisite registration statement
to effect such registration (including such audited financial
statements as may be required by the Securities Act or the
rules and regulations promulgated thereunder) and thereafter
use its best efforts to cause such registration statement to
become and remain effective, provided, however, that the
Company may discontinue any registration of its securities
which are not Registrable Securities (and, under the
circumstances specified in section 2.2(a), its securities
which are Registrable Securities) at any time prior to the
effective date of the registration statement relating thereto,
and further provided that before filing such registration
statement or any amendments thereto, the Company will furnish
to the counsel selected by the holders of Registrable
Securities which are to be included in such registration
copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel;
(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 securities covered by such
registration statement until the earlier of such time as all
of such 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 or (A) in the
case of a registration pursuant to section 2.1, the expiration
of 180 days after such registration statement becomes
effective, or (B) in the case of a registration pursuant to
section 2.2, the expiration of 90 days after such registration
statement becomes effective;
(iii) furnish to each seller of Registrable
Securities covered by such registration statement and each
Requesting Holder and each underwriter, if any, of the
securities being sold by such seller such number of conformed
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 contained
in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and
such other documents, as such seller, Requesting Holder and
underwriter, if any, may reasonably request in order to
facilitate the public sale or other disposition of the
Registrable Securities owned by such Seller;
(iv) use its best efforts (A) to register or qualify
all Registrable Securities and other securities covered by
such registration statement under such other securities laws
or blue sky laws of such jurisdictions as shall reasonably be
requested by any underwriter of the securities being sold by a
seller thereof or, if there is no such underwriter, such
seller, and any Requesting Holder, (B) to keep such
registrations or qualifications in effect for so long as such
registration statement remains in effect, and (C) take any
other action which may be reasonably necessary or advisable to
enable such underwriter, and Requesting Holder (or seller, if
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there is no underwriter) to consummate the disposition in such
jurisdictions of the securities owned by such seller, except
that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in
any jurisdiction wherein it would not, but for the
requirements of this subdivision (iv), be obli- gated to be so
qualified, to subject itself to taxation in any such
jurisdiction or to consent to general service of process in
any such jurisdiction;
(v) use its best efforts to cause all 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
seller or sellers thereof to consum- mate the disposition of
such Registrable Securities;
(vi) furnish to each seller of Registrable Securities
and each Requesting Holder a signed counterpart, addressed to
such seller, such Requesting Holder (and the underwriters, if
any) of the following:
(a) an opinion of counsel for the Company,
dated the effective date of such registration statement
(and, if such registration includes an underwritten
public offering, an opinion dated the date of the
closing under the underwriting agreement), reasonably
satisfactory in form and substance to such seller; and
(b) a "comfort" letter, dated the effective
date of such registration statement (and, if such
registration includes an underwritten public offering,
a letter dated the date of the closing under the
underwriting agreement), signed by the independent
public accountants who have certified the Company's
financial statements included in such registration
statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and, in the case of the
accountants' letter, such other financial matters, and, in the case of the
legal opinion, such other legal matters, as such seller or such Requesting
Holder (or the underwriters, if any) may reasonably request;
(vii) notify each seller of Registrable Securities
covered by such registration statement and each Requesting
Holder, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon the
discovery that, or upon 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 under
which they were made, and at the request of any such seller or
Requesting Holder promptly prepare and furnish to such seller
or Requesting Holder (and each underwriter, if any) 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 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 under which they
were made;
(viii) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and
make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at
least twelve months, but not more than eighteen months,
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beginning with the first day of the full calendar month after
the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act, and will furnish to each such
seller and each Requesting Holder at least five business days
(or such shorter reasonable time period as given circumstances
shall dictate) prior to the filing thereof a copy of any
amendment or supplement to such registration statement or
prospectus and shall not file any thereof to which any such
seller or any Requesting Holder shall have reasonably objected
on the grounds that such amendment or supplement does not
comply in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder; and
(ix) enter into such agreements and take such other
actions as sellers of such Registrable Securities holding 51%
of the shares so to be sold shall reasonably request in order
to expedite or facilitate the disposition of such Registrable
Securities.
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 be permitted to request under applicable law.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
occurrence of any event of the kind described in subdivision (vii) of this
section 2.3, such holder will forthwith discontinue such holder's disposition
of Registrable Securities pursuant to the registration statement relating to
such Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (vii) of this
section 2.3 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 relating to such Registrable
Securities current at the time of receipt of such notice.
If any such registration or comparable statement refers to any holder
of Registrable Securities 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, 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.
2.4 Underwritten Offerings
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a registration requested under section 2.1, the Company will enter
into an underwriting agreement with such underwriters for such offering, such
agreement to be satisfactory in substance and form to the Company, each such
holder and the underwriters, and to contain such representations and warranties
by the Company and such other terms as are generally prevailing in agreements
of this type, including, without limitation, indemnities and other payments to
the effect and to the extent provided in section 2.7. The holders of the
Registrable Securities will cooperate with the Company in the negotiation of
the underwriting agreement and will give consideration to the reasonable
suggestions of the Company regarding the form thereof, provided that nothing
herein contained shall diminish the foregoing obligations of the Company. The
holders of Registrable Securities to be distributed by such underwriters shall
be parties to such underwriting agreement and may, at their option, require
that any or all of the representations and warranties by, and the other
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<PAGE> 14
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 and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such holders of Registrable
Securities. Any such holder of Registrable Securities shall not be required to
make any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such holder, such holder's Registrable Securities and such holder's intended
method of distribution and any other representation required by law.
(b) Incidental Underwritten Offerings. If the Company at any
time proposes to register any of its securities under the Securities Act as
contemplated by section 2.2 and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any holder
of Registrable Securities as provided in section 2.2 and subject to the
provisions of section 2.2(b), use its best efforts to arrange for such
underwriters to include all the Registrable Securities to be offered and sold
by such holder among the securities to be distributed by such underwriters,
provided that if the managing underwriter of such underwritten offering shall
inform the holders of the Registrable Securities requesting such registration
and the holders of any other securities which shall have exercised, in respect
of such underwritten offering, registration rights comparable to the rights
under section 2.2 by letter of its belief that inclusion in such underwritten
distribution of all or a specified number of such Registrable Securities or of
such other securities so requested to be included would interfere with the
successful marketing of the securities (other than such Registrable Securities
and other securities so requested to be included) by the underwriters (such
writing to state the basis of such belief and the approximate number of such
Registrable Securities and other securities so requested to be included which
may be included in such underwritten offering without such effect), then the
Company may, upon written notice to all holders of such Registrable Securities
and of such other securities so requested to be included, exclude pro rata from
such underwritten offering (if and to the extent stated by such managing
underwriter to be necessary to eliminate such effect) the number of such
Registrable Securities and shares of such other securities so requested to be
included the registration of which shall have been requested by each holder of
Registrable Securities and by the holders of such other securities so that the
resultant aggregate number of such Registrable Securities and of such other
securities so requested to be included which are included in such underwritten
offering shall be equal to the approximate number of shares stated in such
managing underwriter's letter, provided that such other securities shall first
be so excluded, and thereafter, Registrable Securities shall be so excluded pro
rata based on the number of shares so requested to be included.
The holders of Registrable Securities to be distributed by such
underwriters shall be parties to the underwriting agreement between the Company
and such underwriters and may, at their option, require that any or all of 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 and that any or all
of the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. Any such holder of Registrable Securities
shall not be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such holder, such holder's Registrable
Securities and such holder's interest in the Company and intended method of
distribution and any other representation required by law.
(c) Holdback Agreements.
(i) Each holder of Registrable Securities agrees by
acquisition of such Registrable Securities, if so required by
the managing underwriter, not to effect any public sale or
distribution of any securities of the Company, during the
seven days prior to and the 90 days after any underwritten
registration pursuant to section 2.1 or 2.2 has become
effective, except as part of such underwritten registration,
whether or not such holder participates in such registration,
and except for any incidental registration pursuant to section
2.2 with respect to any distribution or public sale in which
the managing underwriter has agreed to include such securities
in the registration or public distribution.
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<PAGE> 15
(ii) The Company agrees (x), if so required by the
managing underwriter, not to effect any public sale or
distribution of its equity securities or securities
convertible into or exchangeable or exercisable for any of
such securities during the seven days prior to and the 90 days
after any underwritten registration pursuant to section 2.1 or
2.2 has become effective, except as part of such underwritten
registration and except pursuant to registrations on Form S-4,
S-8, S-14 or S-15 or any successor or similar forms thereto,
and (y) to cause each holder of its securities or any
securities convertible into or exchangeable or exercisable for
any of such securities, in each case purchased directly from
the Company at any time after the date of this Agreement
(other than in a public offering) to agree not to effect any
such public sale or distribution of such securities during
such period.
2.5 Preparation Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, their underwriters,
if any, each Requesting Holder 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' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
2.6 Rights of Requesting Holders. The Company will not file any
registration statement under the Securities Act (other than by a registration
on Form S-8), unless it shall first have given to each holder of Registrable
Securities at the time outstanding (other than any such person who acquired all
such securities held by such person in a public offering registered under the
Securities Act or as the direct or indirect transferee of shares initially
issued in such an offering), at least 30 days prior written notice thereof.
Any such person who shall so request within 30 days after such notice (a
"Requesting Holder") shall have the rights of a Requesting Holder provided in
sections 2.3, 2.5 and 2.7. In addition, if any such registration statement
refers to any Requesting Holder by name or otherwise as the holder of any
securities of the Company, then such Requesting Holder shall have the right to
require (a) the insertion therein of language, in form and substance reasonably
satisfactory to such holder and the Company, to the effect that the holding by
such holder of such securities does not necessarily make such holder a
"controlling person" of the Company within the meaning of the Securities Act
and is not to be construed as recommendation by such holder of the investment
quality of the Company's debt or equity 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 (b) in the event that such reference
to such holder by name or otherwise is not required by the Securities Act or
any rules and regulations promulgated thereunder, the deletion of the reference
to such holder.
2.7 Indemnification.
(a) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless (i) in the case
of any registration statement filed pursuant to section 2.1 or 2.2, the holder
of any Registrable Securities covered by such registration statement, its
directors and officers, each other Person who participates as an underwriter in
the offering or sale of such securities and each other Person, if any, who
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<PAGE> 16
controls such holder or any such underwriter within the meaning of the
Securities Act, and (ii) in the case of any registration statement of the
Company, any Requesting Holder, its directors and officers and each other
Person, if any who controls such Requesting Holder within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such holder or Requesting Holder or any such director or
officer or underwriter or controlling Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon, any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such holder, such Requesting Holder and each such director, officer,
underwriter 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 in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense
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 holder or
Requesting Holder, as the case may be, specifically stating that it is for use
in the preparation thereof and, provided further that the Company shall not be
liable to any Person who participates as an underwriter, in the offering or
sale of Registrable Securities or to any other Person, if any, who controls
such underwriter within the meaning of the Securities Act, in any such case to
the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of such Person's failure
to send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to the Person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of such holder or such Requesting Holder or any such director,
officer, underwriter or controlling person and shall survive the transfer of
such securities by such holder.
(b) Indemnification by the Sellers. The Company may require,
as a condition to including any Registrable Securities in any
registration statement filed pursuant to section 2.3, that the Company shall
have received an undertaking satisfactory to it from the prospective seller of
such Registrable Securities, to indemnify and hold harmless (in the same manner
and to the same extent as set forth in subdivision (a) of this section 2.7) the
Company, each director of the Company, each officer 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 or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an instru- ment 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. Such indemnity shall
be limited to the extent allowable by applicable law and 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.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this section
2.7, 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
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<PAGE> 17
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under the preceding subdivisions of this section 2.7, 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 indemnified
party, unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such claim, the indemnifying party shall be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying party
similarly notified, to the extent that the indemnifying party may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement of any such action 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, or a covenant not to sue, in respect to such claim
or litigation. No indemnified party shall consent to entry of any judgment or
enter into any settlement of any such action the defense of which has been
assumed by an indemnifying party without the consent of such indemnifying
party.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding subdivisions of this section 2.7 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
securities under any Federal or state law or regulation of any governmental
authority, other than the Securities Act.
(e) Indemnification Payments. The indemnification required by
this section 2.7 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
(f) Contribution. If the indemnification provided for in the
preceding subdivisions of this section 2.7 is unavailable to an indemnified
party in respect of any expense, loss, damage or liability referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such expense, loss, damage or liability (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the holder or underwriter, as the case may be, on the other from the
distribution of the Registrable Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
holder or underwriter, as the case may be, on the other in connection with the
statements or omissions which resulted in such expense, loss, damage or
liability, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the holder or
underwriter, as the case may be, on the other in connection with the
distribution of the Registrable Securities shall be deemed to be in the same
proportion as the total net proceeds received by the Company from the initial
sale of the Registrable Securities by the Company to the purchasers pursuant to
the Stock Purchase Agreement, as the case may be, bear to the gain realized by
the selling holder or the underwriting discounts and commissions received by
the underwriter, as the case may be. The relative fault of the Company on the
one hand and of the holder or underwriter, as the case may be, on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission to state a material
fact relates to information supplied by the Company, by the holder or by the
underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission; provided,
that the foregoing contribution agreement shall not inure to the benefit of any
indemnified Person if indemnification would be unavailable to such indemnified
Person by reason of the proviso contained in the first sentence of subdivision
(a) of this section 2.7, and in no event shall the obligation of any
indemnifying party to contribute under this subdivision (f) exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under subdivisions (a) or
(b) of this section 2.7 had been available under the circumstances.
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<PAGE> 18
The Company and the holders of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this subdivision
(f) were determined by pro rata allocation (even if the holders and any
underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth in the preceding sentence and
subdivisions (c) of this section 2.7, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim.
Notwithstanding the provisions of this subdivision (f), no holder of
Registrable Securities or underwriter shall be required to contribute any
amount in excess of the amount by which (i) in the case of any such holder, the
net proceeds received by such holder form the sale of Registrable Securities or
(ii) in the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered to the
public exceeds, in any such case, the amount of any damages that such holder or
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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.
3. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
Class B Common Stock: The shares of Class B Non-Voting Common Stock,
par value $.01 per share, of the Company, as existing under the Company's
Second Amended and Restated Certificate of Incorporation.
Commission: The Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
Common Stock: The shares of Common Stock, par value $.01 per share, of
the Company as existing under the Company's Second Amended and Restated
Certificate of Incorporation.
Company: As defined in the introductory paragraph of this Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to
a particular section of the Securities Exchange Act of 1934, as amended,
shall include a reference to the comparable section, if any, of any
successor statute.
Initiating Holders: Any holder or holders of Registrable Securities
holding greater than 50% of the Registrable Securities (by number of
shares at the time issued and outstanding) and initiating a request
pursuant to section 2.1 for the registration of all or part of such
holder's or holders' Registrable Securities.
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<PAGE> 19
Person: A corporation, an association, a partnership, an organization,
business, an individual, a governmental or political subdivision thereof
or a governmental agency.
Registrable Securities: (a) any shares of Common Stock issued pursuant
to the Stock Purchase Agreement and (b) securities issued or issuable
with respect to any Common Stock referred to in the foregoing
fsubdivision 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, 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, (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.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with section 2, including, without
limitation, all registration, filing and NASD fees, all fees and
expenses of complying with securities or blue sky laws, all word
processing, duplicating and printing expenses, messenger and delivery
expenses, the reasonable fees and disbursements of counsel for the
Company and of its independent public accountants, including the
expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, the fees and disbursements
of any one legal counsel and accountants retained by the holder or
holders of more than 50% of the Registrable Securities being registered
to act on behalf of all such holders, premiums and other costs of
policies of insurance against liabilities arising out of the public
offering of the Registrable Securities being registered and any fees
and disbursements of underwriters customarily paid by issuers or
sellers of securities, but excluding underwriting discounts and
commissions and transfer taxes, if any, provided that, in any case
where Registration Expenses are not to be borne by the Company, such
expenses shall not include salaries of Company personnel or general
overhead expenses of the Company, auditing fees, premiums or other
expenses relating to liability insurance required by underwriters of
the Company or other expenses for the preparation of financial
statements or other data normally prepared by the Company in the
ordinary course of its business or which the Company would have
incurred in any event.
Requesting Holder: As defined in section 2.6.
Rule 415 Registration: A registration requested on Form S-3 pursuant
to Rule 415, or their successors, in connection with the bona fide
pledge of at least 5,000 shares of Common Stock, as constituted on the
date hereof.
Securities Act: The Securities Act of 1933, as amended, or any similar
Federal statute, and the rules and regulations of the Commission
thereunder, all as of the same shall be in effect at the time.
References to a particular section of the Securities Act of 1933, as
amended, shall include a reference to the comparable section, if any, of
any successor statute.
4. Rule 144. If the Company shall have filed a registration
statement pursuant to the requirements of section 12 of the Exchange Act or
a registration statement pursuant to the requirements of the Securities Act
the Company shall timely file the reports required to be filed by it under
the Securities Act and the Exchange Act (including but not limited to the
reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144 adopted by the Securities and Exchange
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder (or, if the Company is not required to file such
reports, will, upon the request of any holder of Registrable Securities, make
publicly available other information) and will take such further action as any
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<PAGE> 20
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (b) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements.
5. Amendments and Waivers. This Agreement may be amended and
the Company may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if the Company shall have
obtained the written consent to such amendment, action or omission to act, of
the holder or holders of more than 50% of the shares of Registrable Securities.
Each holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any consent authorized by this section 5, whether or not such
Registrable Securities shall have been marked to indicate such consent;
provided, however, that no amendment shall be made to section 2.7 hereof
without the written consent of the Company and the holder or holders of 100% of
the shares of Registrable Securities.
6. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election, be treated as the holder
of such Registrable Securities for purposes of any request or other action by
any holder or holders of Registrable Securities pursuant to this Agreement or
any determination of any number or percentage of shares of Registrable
Securities held by any holder or holders of Registrable Securities contemplated
by this Agreement. If the beneficial owner of any Registrable Securities so
elects, the Company may require assurances reasonably satisfactory to it of
such owner's beneficial ownership of such Registrable Securities.
7. Notices. Except as otherwise provided in this Agreement, all
communications provided for hereunder shall be in writing and sent by prepaid
commercial courier, telecopy or first-class registered or certified mail,
postage prepaid, and (a) if addressed to a party other than the Company,
addressed to such party in the manner set forth in the Stock Purchase
Agreement, or at such other address as such party shall have furnished to the
Company in writing, or (b) if addressed to any other holder of Registrable
Securities, at the address that such holder shall have furnished to the Company
in writing, or, until any such other holder so furnishes to the Company an
address, then to and at the address of the last holder of such Registrable
Securities who has furnished an address to the Company, or (c) if addressed to
the Company, at 706 Deerpath Drive, Vernon Hills, Illinois 60016 to the
attention of its Chief Executive Officer with a copy to Kirschner, Main,
Petrie, Graham & Tanner, One Independent Drive, Suite 2000, 20th Floor,
Jacksonville, Florida 32202 to the attention of T. Malcolm Graham, Esq., or at
such other address, or to the attention of such other officer, as the Company
shall have furnished to each holder of Registrable Securities at the time
outstanding. Notices sent by commercial courier services for next day delivery
shall be deemed given and received the day after they are sent, notices sent by
telecopy shall be deemed given and received the day they are sent, and notices
sent by mail shall be deemed given and received five (5) days after being
mailed as aforesaid.
8. Assignment. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent holder of any Registrable
Securities, subject to the provisions respecting the minimum numbers or
percentages of shares of Registrable Securities required in order to be
entitled to certain rights, or take certain actions, contained herein;
provided, that no assignee hereunder or subsequent holder of Registrable
Securities shall have any rights hereunder unless such assignee or holder shall
have executed and delivered to the Company an appropriate instrument in which
such assignee or holder agrees to be bound by this Agreement and to observe and
comply with this Agreement and all obligations and restrictions imposed upon
holders of Registrable Securities hereunder.
9. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
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<PAGE> 21
10. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by
, the laws of the State of Delaware without reference to the principles of
conflicts of laws.
WICKES LUMBER COMPANY
By /s/ George A. Bajalia
-----------------------------
RIVERSIDE GROUP, INC.
By /s/ Kenneth M. Kirschner
------------------------------
14
