UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
ROBERTSON-CECO CORPORATION
(Name of Issuer)
COMMON STOCK, $0.01 par value per share
(Title of Class of Securities)
770 539 203
(CUSIP Number)
Michael E. Heisley, Sr.
RC Holdings, Inc.
5600 Three First National Plaza, Chicago, Illinois 60602 (312) 419-8220
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
August 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
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement / /.
(A fee is not required only if the reporting 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 the purpose 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 Act (however, see the
Notes).
SCHEDULE 13D
CUSIP No. 770 539 203
_________________________________________________________________
1 NAMES OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
MICHAEL E. HEISLEY, SR.
_________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
_________________________________________________________________
3 SEC USE ONLY
_________________________________________________________________
4 SOURCE OF FUNDS*
OO, WK, BK
_________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
_________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
_________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF SHARES 9,000,460
BENEFICIALLY _______________________________________________________
OWNED BY 8 SHARED VOTING POWER
EACH -0-
REPORTING _______________________________________________________
PERSON 9 SOLE DISPOSITIVE POWER
WITH 9,000,460
_______________________________________________________
10 SHARED DISPOSITIVE POWER
-0-
_________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,000,460
_________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* / /
_________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
55.6%
_________________________________________________________________
14 TYPE OF REPORTING PERSON*
IN
_________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 770 539 203
_________________________________________________________________
1 NAMES OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
RC HOLDINGS, INC.
_________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
_________________________________________________________________
3 SEC USE ONLY
_________________________________________________________________
4 SOURCE OF FUNDS*
OO
_________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
_________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NEVADA
_________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF SHARES 3,333,333
BENEFICIALLY _______________________________________________________
OWNED BY 8 SHARED VOTING POWER
EACH -0-
REPORTING _______________________________________________________
PERSON 9 SOLE DISPOSITIVE POWER
WITH 3,333,333
_______________________________________________________
10 SHARED DISPOSITIVE POWER
-0-
_________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,333,333
_________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* / /
_________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.6%
_________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
_________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 770 539 203
_________________________________________________________________
1 NAMES OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
RBC HOLDINGS, L.P.
_________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
_________________________________________________________________
3 SEC USE ONLY
_________________________________________________________________
4 SOURCE OF FUNDS*
OO
_________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
_________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
_________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF SHARES 3,333,333
BENEFICIALLY _______________________________________________________
OWNED BY 8 SHARED VOTING POWER
EACH -0-
REPORTING _______________________________________________________
PERSON 9 SOLE DISPOSITIVE POWER
WITH 3,333,333
_______________________________________________________
10 SHARED DISPOSITIVE POWER
-0-
_________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,333,333
_________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* / /
_________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.6%
_________________________________________________________________
14 TYPE OF REPORTING PERSON*
PN
_________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 770 539 203
_________________________________________________________________
1 NAMES OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
PETTIBONE CORPORATION
_________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
_________________________________________________________________
3 SEC USE ONLY
_________________________________________________________________
4 SOURCE OF FUNDS*
WC, BK
_________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
_________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
_________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF SHARES 5,666,000 shares
BENEFICIALLY _______________________________________________________
OWNED BY 8 SHARED VOTING POWER
EACH -0-
REPORTING _______________________________________________________
PERSON 9 SOLE DISPOSITIVE POWER
WITH 5,666,000 shares
_______________________________________________________
10 SHARED DISPOSITIVE POWER
-0-
_________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
5,666,000
_________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* / /
_________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
35.0%
_________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
_________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Amendment No. 4
to
Schedule 13D
of
RC Holdings, Inc.,
RBC Holdings, L.P.
Michael E. Heisley, Sr.
and
Pettibone Corporation
with respect to the
Common Stock, par value $0.01 per share
of
Robertson-Ceco Corporation
The information contained in the (i) original Schedule 13D ("Original
Schedule 13D") filed November 19, 1993 by RC Holdings, Inc. ("RC Holdings")
(formerly called Heico Acquisitions, Inc.) and Michael E. Heisley, Sr.
("Heisley"), (ii) Amendment No. 1 to the Original Schedule 13D ("Amendment No.
1") filed December 14, 1993 by RC Holdings, Heisley and RBC Holdings, a Delaware
limited partnership ("RBC"), (iii) Amendment No. 2 to the Original Schedule 13D
("Amendment No. 2") dated November 20, 1995 by RC Holdings, Heisley, RBC,
Michael E. Heisley, Jr. and Emily Heisley Stoeckel and (iv) Amendment No. 3 to
the Original Schedule 13D ("Amendment No. 3") filed January 10, 1996 by Heico,
Heisley, RBC, RC Holdings and Pettibone Corporation ("Pettibone") is
incorporated herein by reference.
ITEM 1. SECURITY AND ISSUER
This Schedule 13D Amendment No. 4 relates to the Common Stock, par
value $0.01 per share (the "Common Stock"), of Robertson-Ceco Corporation, a
Delaware corporation (the "Company"). The address of the principal executive
offices of the Company is 5000 Executive Parkway, Suite 425, San Ramon,
California 94583.
ITEM 2. IDENTITY AND BACKGROUND
This Amendment No. 4 is filed on behalf of (i) RBC, (ii) RC Holdings,
(iii) Heisley and (iv) Pettibone. Heisley is the Chief Executive Officer and
Vice Chairman of the Company.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
On August 20, 1996, Pettibone entered into a Stock Purchase Agreement,
attached hereto as Exhibit 18 (the "Stock Purchase Agreement"), with Sage
Capital Corporation ("Sage") whereby Pettibone will purchase from Sage a total
of 4,666,000 shares of Common Stock for $27,996,000 (or $6.00 per share) (the
"Stock Purchase"). Pettibone shall purchase these shares of Common Stock in the
amounts and on the dates set forth below:
Shares to Purchase
Purchase Date be Purchased Price
September 30, 1996 1,166,500 $ 6,999,000
January 31, 1997 1,166,500 6,999,000
September 30, 1997 2,333,000 13,998,000
TOTAL 4,666,000 $27,996,000
In any event, Pettibone may purchase any or all of the 4,666,000 at any
time or times prior to the specified Purchase Date by providing ten (10) days
written notice to Sage.
The Purchase Price with respect to any shares not purchased on or before
September 30, 1996 shall be increased to reflect interest on such amount equal
to the interest rate per annum charged for borrowings by Pettibone from its
primary lending bank (or banks) on August 19, 1996.
In connection with the Stock Purchase, Sage appointed officers of Pettibone
as its attorney-in-fact and proxy for Sage until October 15, 1997 or as long as
the Stock Purchase Agreement remains in effect, whichever is longer; provided,
however, if Pettibone fails to purchase from Sage the shares of Common Stock on
the purchase dates set forth above, the proxy shall immediately be revoked with
respect to such shares not purchased.
The shares of Common Stock that Pettibone will acquire from Sage have
Registration Rights as described in Exhibit 19 hereto.
Pettibone currently anticipates that it will finance the Stock Purchase
with its line of credit with Bank of America Illinois.
ITEM 4. PURPOSE OF TRANSACTION
Except as provided herein, RBC, RC Holdings, Heisley and Pettibone
have no current plans with respect to the disposition of the shares of Common
Stock or the acquisition of additional shares of Common Stock. However, subject
to their obligations under various loan agreements disclosed herein or in the
Original 13D, Amendment Number 1, Amendment Number 2 or Amendment Number 3, they
may dispose of all or a portion of the shares of Common Stock held by them, if
they determine at any time that such disposition may be made at prices and on
terms and conditions they believe to be favorable, and they may acquire
additional shares of Common Stock if they determine at any time that such shares
are available at prices and on terms and conditions they believe to be
favorable.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) - (b) RBC (and Heisley and RC Holdings, indirectly through RBC)
owns 3,333,333 shares of Common Stock. Such shares represent 20.6% of the
issued and outstanding shares of Common Stock (based on the number of shares of
Common Stock issued and outstanding on July 31, 1996). RBC, RC Holdings and
Heisley have sole voting and dispositive power with respect to all of such
Shares.
Heisley also directly owns 1,127 shares of Common Stock, over which he
has sole voting and dispositive power.
After taking into account Pettibone's obligation to purchase 4,666,000
shares of Common Stock pursuant to the Stock Purchase Agreement, Pettibone (and
Heisley, indirectly through Pettibone) beneficially owns 5,666,000 shares of
Common Stock, which represent 35.0% of the issued and outstanding Common Stock
(based on the number of shares of Common Stock issued and outstanding on July
31, 1996). Heisley, as controlling partner of the sole stockholder of Pettibone
and Chief Executive Officer of Pettibone, has sole voting and dispositive power.
When the above shares are aggregated and after taking into account
Pettibone's obligation to purchase 4,666,000 shares of Common Stock pursuant to
the Stock Purchase Agreement, RBC, RC Holdings, Heisley and Pettibone
collectively beneficially own 9,000,460 shares of Common Stock, which represent
55.6% of the issued and outstanding Common Stock (based on the number of shares
of Common Stock issued and outstanding on July 31, 1996).
(c) RBC, Heisley, RC Holdings and Pettibone have not effected any
transaction in the Common Stock within the 60 day period immediately prior to
the event requiring the filing of this Amendment No. 4.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDING OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Except as described in Items 2, 3 and 4 above or stated in the
Original Schedule 13D, Amendment No. 1, Amendment No. 2 or Amendment No. 3,
there are no contracts, arrangements, understandings or relationships (legal or
otherwise) among RBC, RC Holdings, Heisley and Pettibone, or between them and
any person with respect to any securities of the Company, including but not
limited to the transfer or voting of any of the securities, finder's fees, joint
ventures, loans or option arrangements, put or calls, guarantees of profits,
division of profits or loss, or the giving or withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
1. Letter of Intent dated November 9, 1993 between Heico
Acquisitions, Inc. and Robertson-Ceco Corporation (previously filed with
original Schedule 13D).
2. Asset Purchase and Stock Subscription Agreement dated as of
December 2, 1993 by and among Heico Acquisitions, Inc., Robertson Ceco
Corporation and Robertson Espanola, S.A. (previously filed with Amendment No.
1).
3. Registration Rights Agreement dated December 14, 1993 by and
between RBC Holdings, L.P. and Robertson-Ceco Corporation (previously filed with
Amendment No. 1).
4. Loan Agreement dated as of December 6, 1993 between Michael E.
Heisley, Sr. and Gerald D. Hosier (previously filed with Amendment No. 1).
5. Pledge Agreement dated as of December 6, 1993 by RBC Holdings,
L.P. in favor of Gerald D. Hosier (previously filed with Amendment No. 1).
6. Security Agreement dated December 6, 1993 by RBC Holdings, L.P. in
favor of Gerald D. Hosier (previously filed with Amendment No. 1).
7. Pledge Agreement dated December 6, 1993 by Heico Acquisitions,
Inc. in favor of Gerald D. Hosier (previously filed with Amendment No. 1).
8. Pledge Agreement dated December 6, 1993 by Michael E. Heisley, Sr.
in favor of Gerald D. Hosier (previously filed with Amendment No. 1).
9. Assignment of Note and Collateral Agreement dated December 6, 1993
between Michael E. Heisley, Sr. and Gerald D. Hosier (previously filed with
Amendment No. 1).
10. Promissory Note dated December 14, 1993 made by Heico
Acquisitions, Inc., payable to Michael E. Heisley, Sr. (previously filed with
Amendment No. 1).
11. Promissory Note dated December 6, 1993 made by Michael E.
Heisley, Sr. payable to Gerald D. Hosier (previously filed with Amendment No.
1).
12. Stock Purchase Agreement dated November 20, 1995 among Michael E.
Heisley, Jr., Emily Heisley Stoeckel and Foothill Capital Corporation and its
affiliates (previously filed with Amendment No. 2).
13. Stock Purchase Agreement dated November 20, 1995 among Michael E.
Heisley, Jr., Emily Heisley Stoeckel and Pettibone Corporation (previously filed
with Amendment No. 2).
14. Demand Promissory Note dated November 20, 1995 in the amount of
$4,260,000 made by Michael E. Heisley, Sr. payable to the order of Bank of
America Illinois (previously filed with Amendment No. 2).
15. Guaranty dated as of November 20, 1995 executed by Pettibone
Corporation in favor of Bank of America Illinois (previously filed with
Amendment No. 2).
16. Promissory Note dated November 20, 1995 in the amount of
$2,130,000 made by Emily Heisley Stoeckel payable to the order of Michael E.
Heisley, Sr. (previously filed with Amendment No. 2).
17. Promissory Note dated November 20, 1995 in the amount of
$2,130,000 made by Michael E. Heisley, Jr. payable to the order of Michael E.
Heisley, Sr. (previously filed with Amendment No. 2).
18. Stock Purchase Agreement dated August 19, 1996 by and among
Pettibone Corporation and Sage Capital Corporation.
19. Registration Rights Agreement dated May 17, 1993 between
Robertson-Ceco Corporation and Sage RHH.
SIGNATURE
After due 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: August 23, 1996 RC HOLDINGS, INC.
for itself and as general partner of RBC
Holdings, L.P.
By: /s/ Michael E. Heisley, Sr.
Name: Michael E. Heisley, Sr.
Title: Chief Executive Officer
PETTIBONE CORPORATION
By: /s/ Michael E. Heisley, Sr.
Name: Michael E. Heisley, Sr.
Title: Chief Executive Officer
/s/ Michael E. Heisley, Sr.
Michael E. Heisley, Sr.
Exhibit 18
STOCK PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this ___ day of
August, 1996, by and among Pettibone Corporation ("Buyer"), and Sage Capital
Corporation, a shareholder (the "Seller") of Robertson Ceco Corporation (the
"Company").
WHEREAS, the Seller owns and desires to sell to Buyer 4,666,000 shares
of common stock of Robertson Ceco Corporation (the "Shares"); and
WHEREAS, Buyer desires to purchase the Shares;
NOW, THEREFORE, in consideration of the premises, representations,
warranties, covenants, agreements and promises herein contained, the parties
agree as follows:
SECTION 1. PURCHASE AND SALE
1.1. Purchases. The purchase price for the Shares shall be $6 per
share (the "Purchase Price"). Buyer shall purchase and the Seller shall sell
Shares in the amounts and on the dates set forth below; provided, however, that
Buyer may elect to purchase any or all of the Shares at any time or times prior
to the specified Purchase Date by at least ten (10) days prior written notice to
the Seller.
Shares to Purchase
Purchase Date be Purchased Price
September 30, 1996 1,166,500 $ 6,999,000
January 31, 1997 1,166,500 6,999,000
September 30, 1997 2,333,000 13,998,000
TOTAL 4,666,000 $27,996,000
The Purchase Price for the Shares shall be increased to reflect interest on such
amount at the Bank Rate from September 30, 1996 to the actual date of purchase.
The "Bank Rate" for purposes hereof shall mean the interest rate per annum
charged for borrowings by Buyer from its primary lending bank (or banks) as of
the date hereof.
SECTION 2. CLOSING
2.1. Closing. Each transfer of the Shares (a "Closing") shall occur
at the offices of McDermott, Will & Emery, 227 West Monroe Street, Chicago,
Illinois at 10:00 a.m. on the date of purchase.
2.2. Deliveries by Buyer.
2.2.1. Closing. At each Closing, the Buyer shall deliver the
following to the Seller:
(a) the Purchase Price (plus any applicable interest) for Seller's
Shares to be sold at such Closing; and
(b) such other instruments or documents as may be necessary or
appropriate to carry out the transactions contemplated hereby.
2.3. Deliveries by Seller. At each Closing, Seller shall deliver the
following to Buyer:
(a) stock certificates for the Seller's Shares to be sold at such
Closing together with stock powers with medallion signature guarantees; and
(b) such other endorsements, instruments or documents as may be
necessary or appropriate to carry out the transactions contemplated hereby.
2.4. Reorganizations and Changes in Capitalization. If there shall
be any stock split, reverse stock split, merger, or similar reorganization,
recapitalization or other transaction, affecting generally the capital stock of
the Company, or any extraordinary dividend or stock dividend paid on or with
respect to such stock (other than ordinary and customary cash dividends),
appropriate adjustments shall be made hereunder with respect to the Purchase
Price and the proxies granted herein so that the aggregate relative rights and
obligations of the parties hereto shall not be affected by any such action.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to the Buyer as of the date hereof and
as of the Closing, as follows:
3.1. Authority. The Seller has all requisite power and authority,
without the consent of any other person, to execute and deliver this Agreement
and the documents to be delivered at the Closing and to carry out the
transactions contemplated hereby and thereby. The Seller is a validly existing
corporation in good standing under its jurisdiction of incorporation.
3.2. Validity. This Agreement has been duly executed and delivered
and constitutes the lawful, valid and binding obligation of the Seller,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or other laws
affecting the enforcement of creditors rights generally, or by general equitable
principles. No approval, authorization, registration, consent, order or other
action of or filing with any person, including any court, administrative agency
or other government authority, is required for the execution and delivery by
Seller of this Agreement or the performance by the Seller of its obligations
hereunder.
3.3. Shares. The Seller is the owner of the Shares (which are
currently held by Lehman Brothers in nominee name for Seller's account) and at
the Closing will have good, marketable and indefeasible title thereto and the
absolute right to sell, assign, transfer and deliver the same, free and clear of
all claims, security interests, liens, pledges, charges, escrows, options,
proxies, rights of first refusal, preemptive rights, mortgages, hypothecations,
prior assignments, title retention agreements, voting agreements, transfer
restriction agreements, indentures, security agreements or any other limitation,
encumbrance or restriction of any kind.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer hereby represents and warrants to the Seller as of the date
hereof and as of the Closing, as follows:
4.1. Authority. The Buyer has all requisite power and authority,
without the consent of any other person, to execute and deliver this Agreement
and the documents to be delivered at the Closing, and to carry out the
transactions contemplated hereby and thereby.
4.2. Validity. This Agreement has been duly executed and delivered
and constitutes the lawful, valid and legally binding obligation of the Buyer,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors rights
generally, or by general equitable principles. No approval, authorization,
registration, consent, order or other action of or filing with any person,
including any court, administrative agency or other government authority, is
required for the
execution and delivery by the Buyer of this Agreement or the performance by the
Buyer of its obligations hereunder.
4.3. Purchase for Investment. The Buyer is acquiring the Shares for
its own account for investment and not with a view to, or for sale in connection
with, any distribution hereof, nor with any present intention of distributing or
selling the same; and acknowledges and agrees that a legend shall be affixed to
the certificate representing the Shares delivered at each Closing which will
state the Shares have not been registered under the Securities Act of 1933 and
may not be offered, sold or transferred unless and until such Shares are
registered under said Act or such registration is not required.
SECTION 5. SURVIVAL AND INDEMNIFICATION
The representations and warranties in this Agreement will survive the
Closing. Each party shall indemnify and hold harmless the other from any and
all loss, liability, cost, expense, claim or obligation arising from any breach
of any representation and warranty or failure to fulfill any covenant hereunder.
SECTION 6. COVENANTS
6.1. Proxy. Seller hereby revokes any and all proxies heretofore
granted with respect to its Shares and, until October 15, 1997 or such longer
period as this Agreement remains in effect, hereby irrevocably appoints, in
accordance with Section 212 of the Delaware General Corporation Law, the
Chairman and Chief Executive Officer, the Assistant Secretary, the President or
any Vice President (from time to time) of Buyer, and each of them, as attorney-
in-fact and proxy of the Seller to attend any and all meetings of the
stockholders of the Company and to vote its Shares (whether held directly or
through Sage RHH, a partnership controlled by Seller), and to represent and
otherwise to act for the Seller in the same manner and with the same effect as
if the Seller were personally present and to act by consent in the same manner
and with the same effect as if the Seller were executing such consent, with
respect to any matter (in the name of Seller or Sage RHH); provided, however,
that notwithstanding anything to the contrary contained in this Section 6.1,
from and after the date of any failure by Buyer to pay the Purchase Price and
related interest for that portion of the Shares to be purchased by Buyer on a
particular Purchase Date as specified in Section 1 (hereinafter a "Buyer
Default"), this proxy shall immediately thereafter be, without further action by
Seller, revoked and of no further force, effect or validity as to such Shares
and as to all other Shares scheduled to be purchased after such Purchase Date.
Seller agrees that, so long as this Agreement remains in effect, such Seller
will not execute or
deliver to others any proxy with respect to its Shares (whether held
directly or through Sage RHH, a partnership controlled by Seller) and will
promptly provide Buyer with copies of any shareholders' communications received
by the Seller and will not take any other action inconsistent with this proxy.
Except as set forth in this Section 6.1, the foregoing appointment shall (a) be
irrevocable, and (b) be deemed coupled with an interest in that Buyer has
obtained the right to purchase the Shares hereunder.
6.2. Shares. Seller hereby covenants and agrees that the Seller will
not sell, transfer, assign, pledge, hypothecate or otherwise dispose of any of
the Shares (whether held directly or through Sage RHH, a partnership controlled
by Seller) or grant any rights with respect to the Shares (whether held directly
or through Sage RHH, a partnership controlled by Seller), or enter into any
agreement with respect thereto, except pursuant to the terms hereof and except
that this restriction shall terminate and shall not apply after a Buyer Default.
SECTION 7. GENERAL PROVISIONS
7.1. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person or
sent by registered or certified mail, postage prepaid, commercial overnight
courier (such as Express Mail, Federal Express, etc.) with written verification
of receipt or by telecopy.
7.2. Expenses. Each party to this Agreement shall pay its own costs
and expenses in connection with the transactions contemplated hereby.
7.3. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts each of which shall be deemed an original, but all of
which together constitute one and the same instrument.
7.4. Entire Transaction. This Agreement contains the entire
understanding among the parties with respect to the actions contemplated hereby
and supersedes all other agreements, understandings and undertakings among the
parties on the subject matter hereof.
* * *
IN WITNESS WHEREOF, each of the parties hereto has executed or caused
this Agreement to be executed all as of the date first written above.
SAGE CAPITAL CORPORATION PETTIBONE CORPORATION
By: /s/ Andrew Sage By: /s/ Michael Heisley
Andrew Sage, President Its:
Exhibit 19
REGISTRATION RIGHTS AGREEMENT
This Agreement is entered into as of this 17th day of May, 1993, among
Robertson-Ceco Corporation, a Delaware corporation (the "Company"), and Sage
RHH, a Wyoming general partnership ("Sage RHH").
WHEREAS, Sage RHH currently holds $19,830,000 principal amount of the
Company's 15.5% Discount Subordinated Debentures (the "Debentures") and
4,911,300 shares of the Company's common stock, $.01 par value (the "Common
Stock");
WHEREAS, the Company has proposed an exchange offer for, among other
securities, all outstanding Debentures (the "Exchange Offer") in which the
Debentures held by Sage RHH would be exchanged for additional shares of Common
Stock, which Exchange Offer is conditioned, among other conditions, on
acceptance by Sage RHH thereof; and
WHEREAS, Sage RHH has requested that in consideration of its accepting the
Exchange Offer and tendering the Debentures held by it in the Exchange Offer the
Company grant it certain registration rights.
NOW THEREFORE, in consideration of Sage RHH's tendering the Sage RHH
Debentures in the Exchange Offer, and the mutual agreements set forth herein,
the undersigned hereby agree as follows:
1. Demand Registration Rights.
1.1. Request for Demand Registration. Upon notice from one or more
Initiating Holders (as defined below) requesting that the Company effect the
registration under the Securities Act (as defined below) of all or part of the
Registrable Securities (as defined below) held by such Initiating Holders and
specifying the intended method or methods of disposition of such Registrable
Securities, the Company will promptly give written notice of such requested
registration to all holders of Registrable Securities and thereupon will use its
best efforts to effect the registration, under the Securities Act, of:
(i) the Registrable Securities which the Company has been so
requested to register by such Initiating Holders, for disposition in
accordance with the intended method of disposition stated in such request,
and
(ii) all other Registrable Securities which the Company has been
requested to register by the holders of Registrable Securities by written
request delivered to the Company within 30 days after the giving of such
written notice by the Company (which request shall specify the intended
method of disposition of such Registrable Securities),
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities as to be
registered.
1.2. Form of Demand Registration Statement. Registrations under this
Section 1 shall be on such form as shall be selected by the Company and shall
permit the disposition of the Registrable Securities included therein in
accordance with the intended method or methods of disposition specified in the
request for such registration.
1.3. Exceptions to Demand Registration Rights. Notwithstanding the
foregoing provisions of this Section 1, the Company will not be required to
effect, or to take any action to effect, any such registration pursuant to this
Section 1:
(i) after the Company has effected two (2) such registrations
pursuant to this Section 1;
(ii) if the Company has effected any registration within the
preceding six months in which the Initiating Holders could have
participated under Section 2;
(iii) if the request for registration does not request the
registration of at least 500,000 shares of Common Stock (after giving
effect to the contemplated 1 for 16.5 reverse split of the Common Stock,
but subject to adjustment in the event such reverse split is not effected,
and in respect of all other stock dividends, stock splits and similar
corporate events), and contain a representation of a good faith intention
to sell such shares pursuant to the registration statement;
(iv) for any period of 90 days during any twelve month period if
the Board of Directors of the Company determines in good faith that the
public sale of securities or the furnishing of a registration statement at
such time would be materially detrimental to the Company; or
(v) if in the opinion of counsel to the Company (which may be an
officer of the Company) and, if the manner of disposition proposed is an
underwritten offering, in the opinion of counsel to the proposed
underwriter, delivered to the Company's transfer agent, registration under
the Securities Act is unnecessary to allow the sale or transfer of the
Registrable Securities proposed to be sold in the registration in the
manner described in the request.
1.4. Effectiveness of Demand Registration. For purposes of this Section
1, a registration shall not be deemed to have been effected pursuant to this
Section 1 (i) unless a registration statement with respect thereto has become
effective, (ii) if after a registration statement has become effective, such
registration is interfered with by any stop order, injunction, or other order of
the Commission (as defined below) for any reason not attributable to any holder
of Registrable Securities, or (iii) the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived other than by reason of the failure or
refusal of any holder of Registrable Securities.
2. Piggyback Registration Rights. If the Company at any time proposes to
register any shares of Common Stock under the Securities Act, whether or not for
sale for its own account, on a form which would permit registration of
Registrable Securities for sale to the public under the Securities Act, it will
each such time give written notice to all holders of Registrable Securities of
its intention to do so, specifying the form and manner and the other relevant
facts involved in such proposed registration, and upon the written request of
any such holder delivered to the Company within 30 days after the giving of any
such notice (which request shall specify the Registrable Securities intended to
be disposed of by such holder and the intended method of disposition thereof),
the Company will use its best efforts as a part of its filing to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by holders of Registrable Securities,
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, provided that:
(i) if (x) the registration so proposed by the Company involves
an underwritten offering, whether or not for sale for the account of the
Company, to be distributed (on a firm commitment basis) by or through one
or more underwriters of recognized standing under underwriting terms
appropriate for such a transaction, (y) the Registrable Securities so
requested to be registered for sale for the account of holders of
Registrable Securities are not also to be included in such underwritten
offering (either because the Company has not been requested so to include
such Registrable Securities pursuant to Section 2 hereof or, if requested
to do so, has been unable so to include such Registrable Securities after
using reasonable efforts to do so as provided in Section 3.4 hereof), and
(z) the managing underwriter of such underwritten offering shall advise the
Company in writing that, in its opinion, the distribution of all or a
specified portion of such Registrable Securities concurrently with the
securities being distributed by such underwriters will substantially
interfere with the successful offering of such securities by such
underwriters (such opinion to state the approximate number of shares which
can be distributed without such effect), then the Company will promptly
furnish each such holder of Registrable Securities with a copy of such
opinion and may require, by written notice to each such holder accompanying
such opinion, that the number of shares of Registrable Securities to be
included in such registration statement be limited to the number indicated
in such opinion (such portion to be allocated among such holders of
Registrable Securities and all other Persons (as defined below) (other than
the Company) proposing to include Common Stock in the registration in
proportion to the respective numbers of shares requested to be registered
by such holders);
(ii) the Company shall not be obligated to effect any
registration of Registrable Securities under this Section 2 incidental to
any registration involving any of its securities other than Common Stock,
or incidental to the registration of Common Stock in connection with any
merger, acquisition, exchange offer, dividend reinvestment plan or stock
option or other employee benefit plan; and
(iii) if, at any time after giving written notice of its intention
to register Common Stock and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason either not to register or to delay
registering such Common Stock, the Company may, at its election, give
written notice of such determination to each holder of Registrable
Securities and, thereupon, (x) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration, without prejudice,
however, to the rights of one or more Initiating Holders to request that
such registration be effected as a registration under Section 1 and (y) 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 Common Stock.
3. Registration Procedures.
3.1. Preparation of Registration Statement, etc. If and whenever the
Company is required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections 1 and 2
hereof, the Company will as expeditiously as possible:
(i) prepare and (in the case of a registration pursuant to
Section 1 hereof, within 45 days after the end of the period within which
requests for registration may be delivered to the Company) file with the
Commission a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective; provided that before filing such registration statement
and any amendments thereto, the Company will furnish to counsel selected by
the holders of Registrable Securities to be included in such registration
statement copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel. In the case of a
registration under Section 1 hereof, such registration statement shall be
for an offering to be made on a continuous or delayed basis (a so-called
"shelf registration statement") if the Company is eligible for the use
thereof and the holders of a majority of the Registrable Securities to be
included in such registration statement have requested a shelf registration
statement;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities and other
securities covered by such registration statement until such time as all of
such Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth
in such registration statement, but in no event for a period of more than
one year after such registration statement becomes effective;
(iii) furnish to each seller of such Registrable Securities such
number of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits,
except that the Company shall not be obligated to furnish any such seller
with more than two copies of such exhibits other than incorporated
documents), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus and any
summary prospectus) in conformity with the requirements of the Securities
Act, such documents incorporated by reference in such registration
statement or prospectus, and such other documents, as such seller may
reasonably request in order to facilitate the disposition of its
Registrable Securities covered by such registration statement;
(iv) use its best efforts to register or qualify such Registrable
Securities under such securities or blue sky laws of such jurisdictions as
each seller shall reasonably request, and do any and all other acts and
things which may be necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of its Registrable
Securities covered by such registration statement;
(v) furnish to each seller of such Registrable Securities a
signed counterpart, addressed to such seller, of an appropriate opinion of
counsel for the Company covering substantially the same matters with
respect to such registration statement (and the prospectus included
therein) as are customarily covered in opinions of issuer's counsel
delivered to underwriters in underwritten public offerings of securities;
(vi) immediately upon becoming aware of the same, notify each
seller of Registrable Securities covered by such registration statement, at
any time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as a result of
which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such seller prepare and furnish to such
seller a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(vii) otherwise use its best efforts to comply with the Securities
Act, and make available to its securities holders, as soon as reasonably
practicable, but not more than eighteen months after the effective date of
such registration statement, an earnings statement covering the period of
at least twelve months beginning with the first day of the first fiscal
quarter after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(viii) unless such Registrable Securities are already listed on
each securities exchange, if any, on which the Company's common equity is
then listed, use its best efforts to list such Registrable Securities on
each such securities exchange.
Each holder of Registrable Securities shall be deemed to have agreed by
acquisition of such Registrable Securities that upon receipt of any notice from
the Company of the happening of any event of the kind described in clause (vi)
of this Section 3.1, such holder will forthwith discontinue such holder's
offering or disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such holder's receipt of
the copies of the supplemented or amended prospectus contemplated by said clause
(vi) and, if so directed by the Company, will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
holder's possession of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
3.2. Information Concerning Sellers. The Company may require each seller
of Registrable Securities as to which any registration is being effected to
furnish the Company such information regarding such seller and the distribution
of such securities as the Company may from time to time reasonably request in
writing and which shall be required by law or by the Commission in connection
therewith.
3.3. Demand Underwritten Offering. Whenever a registration requested by
one or more Initiating Holders pursuant to Section 1 hereof is for an
underwritten offering, only shares which are to be distributed by the
underwriters designed by the requesting holder may be included in such
registration. If Persons holding a majority of the Registrable Securities to be
included in such registration shall determine that the number of shares of
Registrable Securities should be limited due to market conditions or otherwise,
all holders of Common Stock other than Registrable Securities shall first share
pro rata in the number of shares to be deferred, with any excess in the number
of shares to be deferred to be shared pro rata among all holders of Registrable
Securities, such sharing in each case to be based on the respective numbers of
shares as to which registration has been requested by such holders.
3.4. Underwriting Agreement. If requested by the underwriters for any
underwritten offering of Registrable Securities on behalf of a holder or holders
of Registrable Securities pursuant to a registration requested under Section 1
hereof, the Company will enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Company and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnity and contribution to the
effect and to the extent provided in Section 4 hereof. If the Company at any
time proposes to register any of its securities under the Securities Act (other
than pursuant to a request made under Section 1 hereof), whether or not for sale
for its own account, and such securities are to be distributed by or through one
or more underwriters, the Company will make reasonable efforts, if requested by
any holder of Registrable Securities who requests incidental registration of
Registrable Securities in connection therewith pursuant to Section 2 hereof, to
arrange for such underwriters to include such Registrable Securities among those
securities to be distributed by or through such underwriters. The holders of
Registrable Securities on whose behalf Registrable Securities are to be
distributed by such underwriters shall be parties to any such underwriting
agreement and the representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such underwriters, shall also
be made to and for the benefit of such holders of Registrable Securities.
3.5. Participation. In connection with the preparation and filing of
each registration statement registering Registrable Securities under the
Securities Act, the Company will give the holders of Registrable Securities on
whose behalf such Registrable Securities are to be so registered and their
underwriters, if any, and their respective counsel and accountants, the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and will give each of them such access
to its books and records and such opportunities to discuss the business of the
Company with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of such
holders and such underwriters or their respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
3.6. Registration Expenses. The Company will pay all Registration
Expenses (as defined below) in connection with all registrations effected
pursuant to Section 1 or Section 2.
4. Indemnification and Contribution.
4.1. Indemnification by the Company. In the event of any registration of
any Registrable Securities under the Securities Act pursuant to Section 1 or 2
hereof, the Company will, and hereby does, indemnify and hold harmless the
seller of such securities, its partners, directors and officers, each other
Person who participates, on behalf of such seller, as an underwriter, broker or
dealer in the offering or sale of such securities and each other Person, if any,
who controls such seller or any such participating Person within the meaning of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller or any such partner, director or officer or
participating or controlling Person may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained or
incorporated by reference in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus
or final prospectus included therein, or any related summary prospectus, or any
amendment or supplement thereto, or any document incorporated by reference
therein, (ii) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and will reimburse such seller and each such partner, director,
officer, participating Person and controlling Person for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding, provided that
the Company shall not be liable to any such indemnified party in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller specifically stating
that it is for use in the preparation thereof. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
such seller or any such partner, director, officer, participating Person or
controlling Person and shall survive the transfer of such securities by such
seller.
4.2. Indemnification by Sellers. The Company may require, as a condition
to including any Registrable Securities in any registration statement filed
pursuant to Section 1 or 2 hereof, that the Company shall have received an
undertaking satisfactory to it from the prospective seller of such securities,
to indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 4.1 hereof) the Company, each officer and director of the
Company, and each other Person, if any, who controls the Company within the
meaning of the Securities Act, with respect to any statement in or omission from
such registration statement, any preliminary prospectus or final prospectus
included therein, or any amendment or supplement thereto, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such seller
specifically stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling Person and shall survive the transfer of such
securities by such seller.
4.3. Notice and Defense of Claims. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim of the type referred to in the preceding subsections of this
Section 4, such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under the preceding subsections of this Section 4 except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
the indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified,
to the extent that it may wish, with counsel reasonably satisfactory to such
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 will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof; provided, however, that if any indemnified party reasonably
believes that it is advisable for such indemnified party to be represented by
separate counsel because of a potential conflict of interest or if the
indemnifying party shall fail to assume responsibility for such defense, such
indemnified party may retain counsel satisfactory to such indemnified party who
will represent such indemnified party, and the indemnifying party shall pay all
fees and expenses of such counsel promptly as statements therefor are received.
No indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
4.4. Contribution. If the indemnification provided for in Section 4.1 or
4.2 hereof is unavailable to a party that would have been an indemnified party
under any such section in respect of any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) referred to therein, then each
party that would have been an indemnifying party thereunder shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and such indemnified party on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof).
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or such indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company agrees that it would not be
just and equitable if contribution pursuant to this Section 4.4 were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the preceding sentence.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 4.4 shall include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim (which shall be limited as provided in
Section 4.3 hereof if the indemnifying party has assumed the defense of any such
action in accordance with the provisions thereof). No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
5. Definitions. For purposes of this Agreement, the following terms shall
have the meanings specified below:
5.1. Commission. The term "Commission" shall mean the Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act.
5.2. Initiating Holder. The term "Initiating Holder" shall mean a Person
or Persons who shall request registration and who shall then hold Registrable
Securities representing at least 25% of the outstanding shares of Registrable
Securities.
5.3. Person. The term "Person" shall mean an individual, partnership,
corporation, association, trust, joint venture, unincorporated organization, and
any government, governmental department or agency or political subdivision
thereof.
5.4. Registrable Securities. The term "Registrable Securities" shall
mean (i) any Common Stock held by Sage RHH on the date hereof or issued to Sage
RHH in the Exchange Offer or issued or issuable in exchange for or upon transfer
of any Registrable Securities or (ii) any Common Stock or other common equity
securities issued or issuable with respect to any Registrable Securities by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
As to any particular Registrable Securities, once issued such securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) they shall have been distributed to the
public pursuant to Rule 144 (or any successor provision) under the Securities
Act, or (iii) they shall have ceased to be outstanding.
5.5. Registration Expenses. The term "Registration Expenses" shall mean
all expenses incident to performance of or compliance with Sections 1, 2 and 3
hereof by the Company, including without limitation all registration and filing
fees, all fees and expenses of complying with securities or blue sky laws, all
printing expenses, all messenger and delivery expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits required by or
incident to such performance and compliance, but excluding the fees and
disbursements of counsel for the holders on whose behalf Registrable Securities
are being registered and any underwriting discounts and commissions and
applicable transfer taxes, if any, each of which shall be borne by the holders
of the Registrable Securities in all cases.
5.6. Securities Act. The term "Securities Act" shall mean the Securities
Act of 1933, or any successor federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
6. Effectiveness; Termination. The effectiveness of this agreement shall be
conditioned on and subject to the consummation of the Exchange Offer. Upon the
effectiveness of this Agreement, the Registration Rights Agreement dated as of
November 8, 1990, among the Company and Sage RHH, as successor to Frontera,
S.A., shall terminate and be of no further force or effect. This Agreement
shall terminate and be of no further force or effect (other than the provisions
of Section 4 hereof, which shall not terminate) when no Person holding
Registrable Securities, even if acting together with all other holders of
Registrable Securities, could be an Initiating Holder.
7. Notices. Any notice or other communication in connection with this
Agreement shall be deemed to be delivered if in writing (or in the form of a
telex or telecopy) addressed as provided below and if either (a) actually
delivered at said address or (b) in the case of a letter, three business days
shall have elapsed after the same shall have been deposited in the United States
mails, postage prepaid and registered or certified:
If to the Company, to it at 222 Berkeley Street, Boston, Massachusetts
02116, to the attention of the General Counsel, or at such other address as the
Company shall have specified by notice actually received by the addressor prior
to the giving of the applicable notice or communication.
If to Sage RHH, to it c/o Sage Capital Corporation, c/o Thompson, Palmer
and Associates, P.O. Box 4158, Jackson, Wyoming 83001, to the attention of the
President, or at such other address as the Company shall have specified by
notice actually received by the addressor prior to the giving of the applicable
notice or communication.
If to any other holder of record of any Registrable Security, to it at its
address set forth in the stock register maintained by the Company or its
transfer agent.
8. Amendments. Any term of this Agreement may be amended, and the observance
of any term of this Agreement may be waived, only with the written consent of
the Company and the holders of a majority of the Registrable Securities. Any
amendment or waiver effected in accordance with this Section 8 shall be binding
upon the Company and each holder of any Registrable Security.
9. Miscellaneous. This Agreement sets forth the entire understanding of the
parties hereto with respect to the transactions contemplated hereby. The
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of any other term or provision hereof. The
headings in this Agreement are for convenience of reference only and shall not
alter or otherwise affect the meaning hereof. This Agreement may be executed in
any number of counterparts which together shall constitute one instrument and
shall be governed by and construed in accordance with the domestic substantive
laws of The Commonwealth of Massachusetts, and shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns. In
addition, whether or not any express assignment has been made, provisions of
this Agreement that are for your benefit as the holder of any Registrable
Security shall also inure to the benefit of, and be enforceable by, all
subsequent holders of Registrable Securities.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed under seal by their respective duly authorized officers as of the day
and year first above written.
ROBERTSON-CECO CORPORATION
By: /s/ Denis N. Malorani
Denis N. Malorani
Title: Executive Vice President
and CFO
SAGE RHH
By: Sage Capital Corporation,
Partner
By: /s/ Andrew G. C. Sage
Andrew G. C. Sage
Title: President and CEO
