Page 1 of 27 Pages
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(AMENDMENT NO. 1)
ZIMMERMAN SIGN COMPANY
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
989580 10 5
(Cusip Number)
David T. Kettig
96 Cummings Point Road
Stamford, CT 06902 (203) 358-8000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
September 30, 1998
(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 [ ].
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 or the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
Cusip No. 989580 10 5
<PAGE>
Page 2 of 27 Pages
Item 1. Security and Issuer.
--------------------
The undersigned hereby supplements and amends the Schedule
13D, dated January 6, 1997 (the "Statement"), filed in
connection with the Common Stock, par value $.01 per share (the
"Common Stock"), of Zimmerman Sign Company, a Texas corporation
(the "Company"), as follows (reference is made to the Statement
for previously reported facts):
Item 4. Purpose of Transaction.
-----------------------
The third paragraph of Item 4 of the Statement is hereby
amended in its entirety to read as follows:
"Notwithstanding the foregoing, and except as described in
Item 6 below, the Item 2 Persons do not have any plan or
intention to sell, exchange or transfer by gift or otherwise
dispose of any of the shares of Common Stock received in the
Distribution."
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the
Issuer.
-----------------------------------------------------
Item 6 of the Statement is hereby amended in its entirety
to read as follows:
"On September 30, 1998, the Item 2 Persons entered into a
Share Option Purchase Agreement with the Company and David E.
Anderson ("Anderson") pursuant to which, in consideration of
$0.25 cash per share, the Item 2 Persons granted to (i) the
Company an option to purchase an aggregate of 357,143 shares of
Common Stock at a price per share equal to (a) $1.50 in cash and
(b) .0175 shares of Series C Preferred Stock, par value $0.01
per share, of the Company; and (ii) Anderson an option to
purchase an aggregate of 428,000 shares of Common Stock at a
price per share equal to $3.25 in cash. The options are
exercisable only between the open of business on January 4, 1999
and the close of business on January 8, 1999.
On September 30, 1998, that certain Registration Rights
Agreement, dated as of December 1, 1996, among the Company and
the Item 2 Persons was terminated. On that same date, the Item 2
Persons, the Company, Continental Illinois Venture Corporation
("CIVC"), and MIG Partners VIII ("MIG") entered into a new
Registration Agreement.
<PAGE>
Page 3 of 27 Pages
The Item 2 Persons were required to enter into the
foregoing agreements as a condition to the re-financing of the
Company as of September 30, 1998. As a further condition, Steven
B. Lapin and Roy T.K. Thung were required to resign as directors
of the Company."
Item 7. Material to be Filed as Exhibits.
---------------------------------
A. Share Option Purchase Agreement, dated September
30, 1998, among the Item 2 Persons, the Company and
Anderson.
B. Consent and Waiver, dated September 30,
1998, among the Item 2 Persons and the Company.
C. Registration Agreement, dated September 30, 1998,
among the Item 2 Persons, the Company, CIVC and MIG.
Signature
- ---------
After reasonable inquiry and to the best of the knowledge
and belief of each of the undersigned, the undersigned certify
that the information set forth in this Statement is true,
complete and correct.
GENEVE HOLDINGS, INC.
By:/s/ David T. Kettig
--------------------------
David T. Kettig, Secretary
SOUTHERN MORTGAGE HOLDING
CORPORATION
By:/s/ David T. Kettig
--------------------------
David T. Kettig, Secretary
GENEVE SECURITIES HOLDING CORP.
By:/s/ David T. Kettig
--------------------------
David T. Kettig, Secretary
<PAGE>
Page 4 of 27 Pages
GENEVE SECURITIES PORTFOLIO CORP.
By:/s/ David T. Kettig
--------------------------
David T. Kettig, Secretary
SOUTHERN INVESTORS CORP.
By:/s/ David T. Kettig
--------------------------
David T. Kettig, Secretary
CHAPARRAL INTERNATIONAL RE.
By:/s/ David T. Kettig
--------------------------
David T. Kettig, Secretary
October 7, 1998
<PAGE>
Page 5 of 27 Pages
EXHIBIT A
SHARE OPTION PURCHASE AGREEMENT
-------------------------------
THIS SHARE OPTION PURCHASE AGREEMENT (this "Agreement") is
made as of September 30,1998, among Geneve Securities Holding
Corp., Geneve Securities Portfolio Corp., Chaparral
International Re., Southern Mortgage Holding Corporation and
Southern Investors Corp. (collectively, "GHI"), Zimmerman Sign
Company, a Texas corporation (the "Company"), and David Anderson
("Anderson," and together with the Company, the "Optionees").
Except as otherwise indicated herein, capitalized terms used and
not otherwise defined herein have the meanings ascribed to such
terms in the Senior Subordinated Note, Preferred Stock and
Warrant Purchase Agreement, dated as of the date hereof (the
"Purchase Agreement"), among the Company and certain investors
listed therein.
GHI desires to grant to each Optionee and each Optionee
desires to acquire an option (each an "Option" and collectively
the "Options") to purchase the number of shares of the Company's
Common Stock indicated on Schedule I hereto which aggregate
785,143 shares (the "Option Shares") at the exercise prices and
on the terms and subject to the conditions set forth herein.
As of the date hereof, the Company has entered into a
Senior Subordinated Note, Preferred Stock and Warrant Purchase
Agreement (the "Recapitalization Agreement") pursuant to which
the Company is initiating a plan to recapitalize its existing
debt and equity structure through a series of transactions which
include the issuance to certain investors of capital stock and
subordinate notes thereunder. Execution and delivery of this
Share Option Purchase Agreement is a condition to the
obligations of such Investors thereunder.
In consideration of the mutual covenants and promises
contained herein and for the good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Option.
1A. Company Option. GHI hereby grants to the Company an
Option for the purchase of up to 357,143 Option Shares at a
price per share equal to $1.50 per share in cash and the
delivery of .0175 shares of Series C Preferred Stock, par value
$0.01 per share (the "Series C Preferred Stock"), payable upon
exercise as set forth in Section 2. The Option granted pursuant
to this Section 1A may be exercised only during the period (the
"Exercise Period") commencing with the open of business on
January 4, 1999 through the close of business on January 8,
1999.
1B. Anderson Option. GHI hereby grants to Anderson an
Option (the "Anderson Option") for the purchase of up to 428,000
Option Shares at a price per share equal to $3.25 per
<PAGE>
Page 6 of 27 Pages
share, payable in cash only upon exercise as set forth in
Section 2. The Anderson Option may be exercised only during the
Exercise Period.
1C. Consideration. The consideration for an Option being
granted hereunder is $.25 per Option Share. As of the date
hereof, the Company and Anderson shall deliver $89,285.75 and
$107,000.00, respectively, to GHI, by cashier's check or wire
transfer of immediately available funds.
Section 2. Exercise of the Option. Each Optionee may
exercise its Option, in whole or in part, upon payment of the
product of (i) the exercise price set forth in Section 1A or 1B,
as the case may be, multiplied by (ii) the number of Option
Shares to be acquired. Payment of the applicable option price by
Anderson shall be made in cash, by wire transfer of immediately
available funds to an account designated by GHI. Payment of the
applicable option price by the Company shall be made by delivery
of the applicable option price in cash, by wire transfer of
immediately and available funds, and by delivery of stock
certificates representing Series C Preferred Stock. Upon payment
of the option price by an Optionee, GHI shall deliver to such
Optionee the stock certificates evidencing the Option Shares to
be acquired by such Optionee duly endorsed in blank or
accompanied by duly executed stock powers.
Section 3. Representations and Warranties.
(a) GHI hereby represents and warrants to the Optionees as
follows:
(i) GHI is the record and beneficial owner of the
Option Shares free and clear of all Liens and no other third
party has any right or interest in the Option Shares, and at the
time of the exercise of the Option by either Optionee, such
Optionee will acquire good and marketable title to the Option
Shares so acquired free and clear of any Liens;
(ii) the Option Shares are not subject to any
statutory or contractual stockholders' preemptive rights or
rights of first offer or refusal with respect to the transfers
of the Option Shares contemplated hereby;
(iii) Geneve Securities Portfolio Corp. is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the
requisite corporate power and authority to enter into this
Agreement and consummate the transactions contemplated hereby;
(iv) Chaparral International Re. is a corporation
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization and has the
requisite corporate power and authority to enter into this
Agreement and consummate the transactions contemplated hereby;
<PAGE>
Page 7 of 27 Pages
(v) Geneve Securities Holding Corp. is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the requisite corporate
power and authority to enter into this Agreement and consummate
the transactions contemplated hereby;
(vi) Southern Investors Corp. is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Delaware and has the requisite corporate power
and authority to enter into this Agreement and consummate the
transactions contemplated hereby; and
(vii) Southern Mortgage Holding Corp. is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the
requisite corporate power and authority to enter into this
Agreement and consummate the transactions contemplated hereby.
(b) Each of the Company and Anderson hereby represent and
warrant to GHI that such person has the requisite power and
authority to enter into this Agreement and consummate the
transactions contemplated thereby and that if the Options are
exercised each is acquiring the Option Shares for investment
purposes and not with any present intention to resell or
distribute such shares except for the contemplated sale by
Anderson of a portion of the Option Shares to the Company.
Section 4. Certain Covenants. Until exercise of the
Options contemplated hereby, GHI shall not and shall not permit
any of its representatives to take any action (whether as a
shareholder, director, officer, employee or otherwise) which
would reasonably be anticipated to have an adverse effect on the
Company or the transactions contemplated hereby or in the
Recapitalization Agreement or the other agreements contemplated
hereby. Without limiting the foregoing in any way, prior to
exercise of the Options hereunder, GHI shall not, directly or
indirectly, enter into any contract, agreement or understanding
with respect to the transfer or voting of the Option Shares or
the placing of a Lien on any of the Option Shares.
Section 5. Miscellaneous.
5A. Survival of Representations and Warranties. All
representations and warranties contained herein or made in
writing by any party in connection herewith shall survive the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby. The covenants contained
herein shall terminate upon the earlier of consummation of the
transactions contemplated hereby or the expiration of the
Exercise Period.
5B. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective
and valid under applicable law. but if any provision of this
Agreement is held to be prohibited by or invalid under
applicable law, such
<PAGE>
Page 8 of 27 Pages
provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of
this Agreement.
5C. Other Agreements. Upon exercise of the Anderson Option,
the Option Shares not subsequently conveyed to the Company shall
be deemed Stockholder Shares (as defined in the Stockholders
Agreement) and Other Registrable Securities (as defined in the
Registration Agreement).
5D. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which
need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the
same Agreement.
5E. Governing Law. The corporate law of the State of Texas
shall govern all issues and questions concerning the relative
rights and obligations of the Company and its stockholders. All
other issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement and
the exhibits and schedules hereto shall be governed by, and
construed in accordance with, the laws of the State of Texas,
without giving effect to any choice of law or conflict of law
rules or provisions (whether of the State of Texas or any other
jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of Texas.
5F. Notices. All notices, demands and other communications
given or delivered under this Agreement shall be in writing and
shall be deemed to have been given upon receipt when delivered
personally or by telecopy, one Business Day after being
deposited with a reputable overnight courier service or three
Business Days after being deposited in the U.S. Mail. Notices,
demands and communications to the Purchasers and the Company,
unless another address is specified in writing, shall be sent to
the address or telecopy number indicated below and to the
attention of such other persons indicated below or to such other
address or to the attention of such other person as the
recipient party has specified by prior written notice to the
sending party:
If to GHI:
- ---------
Geneve Holdings, Inc.
96 Cummings Pt. Rd.
Stamford, Connecticut 06902
Attn: Steve Lapin
Telecopier: (203) 348-3103
<PAGE>
Page 9 of 27 Pages
If to the Company:
- -----------------
Zimmerman Sign Company
9846 Hwy 31 East
Tyler, Texas 75705
Attn: Chief Executive Officer
Telecopier: (903) 535-7401
with copies to:
- --------------
Jackson Walker L.L.P.
901 Main Street
Suite 6000
Dallas, Texas 75705
Attn: Bryan C. Birkeland
Telecopier: 214/953-5822
Bank of America National Trust and
Savings Association
231 South LaSalle Street
Chicago, Illinois 60697
Attn: Robert F. Perille
Andrea P. Joselit
Telecopier: 312/828-6298
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attn: John A. Weissenbach
Wendy L. Chronister
Telecopier: 312/861-2200
or to such other address or to the attention of such other
person as the recipient party has specified by prior written
notice to the sending party.
5G. Specific Performance. Each of the parties hereto
acknowledges and agrees that the other parties would be damaged
irreparably in the event any of the provisions of this Agreement
are not performed in accordance with their specific terms or are
otherwise breached. Accordingly, each of the parties hereto
agrees that the other parties shall be entitled to an injunction
or injunctions (without the posting of bond or any other
security) to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in any action instituted in any
court in the United States or in any state having jurisdiction
over the parties and the matter in addition to any other remedy
to which it may be entitled pursuant hereto.
<PAGE>
Page 10 of 27 Pages
SCHEDULE I
Shares Transferred
Shares Subject Upon Exercise
Seller to Options Option Holder of Option
- ------ ---------- ------------- ---------
Geneve Securities Portfolio 173,771 Company 173,771
Corp. Anderson -0-
Geneve Securities Holding 156,578 Company 156,578
Corp. Anderson -0-
Chaparral International Re. 17,500 Company 17,500
Anderson -0-
Southern Mortgage Holding 36,956 Company 9,151
Corp. Anderson 27,805
Southern Investors Corp. 400,338 Company 143
Anderson 400,195
<PAGE>
Page 11 of 27 Pages
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
SOUTHERN INVESTORS CORP.
By /s/ Steven B. Lapin
-------------------
Its __________________________
SOUTHERN MORTGAGE HOLDING
CORPORATION
By /s/ Steven B. Lapin
-------------------
Its ___________________________
GENEVE SECURITIES PORTFOLIO CORP.
By /s/ Steven B. Lapin
-------------------
Its ____________________________
GENEVE SECURITIES HOLDING CORP.
By /s/ Steven B. Lapin
-------------------
Its ____________________________
CHAPARRAL INTERNATIONAL RE.
By /s/ Steven B. Lapin
-------------------
Its ____________________________
ZIMMERMAN SIGN COMPANY
By /s/ Jeffrey Johnson
-------------------
Its Vice President, Chief Financial Officer
---------------------------------------
/s/ David E. Anderson
- ---------------------
David Anderson
SIGNATURE PAGE TO SHARE OPTION PURCHASE AGREEMENT
<PAGE>
Page 12 of 27 Pages
EXHIBIT B
CONSENT AND WAIVER
------------------
Reference is hereby made to that Registration Rights Agreement,
dated as of December 1, 1996, by and among Zimmerman Sign
Company, a Texas corporation (the "Company"), and Southern
Investors Corp., Southern Mortgage Holding Corporation, Geneve
Securities Portfolio Corp., Geneve Securities Holding Corp., and
First International Reinsurance Company, Inc. (collectively, the
"Holdings"). Capitalized terms used and not defined herein have
the meanings set forth in the Registration Rights Agreement.
The Company is entering into a Senior Subordinated Notes,
Preferred Stock and Warrant Purchase Agreement pursuant to
certain investors are providing financing to the Company by
purchasing equity securities and subordinated notes in
accordance with the provisions thereof. Termination of the
Registration Rights Agreement is a condition to the obligations
of the investors thereunder. Accordingly, by their execution
hereof, each of the parties hereto and to the Registration
Rights Agreement consents to the termination of all of the
provisions thereof and waives any rights to continuing benefits
thereunder.
<PAGE>
Page 13 of 27 Pages
WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
Dated as of September 30, 1998
ZIMMERMAN SIGN COMPANY
By /s/ Jeffrey Johnson
-------------------
Its _______________
SOUTHERN INVESTORS CORP.
By /s/ Steven B. Lapin
-------------------
Its ________________
SOUTHERN MORTGAGE HOLDING
CORPORATION
By /s/ Steven B. Lapin
-------------------
Its ________________
GENEVE SECURITIES PORTFOLIO CORP.
By /s/ Steven B. Lapin
-------------------
Its ________________
GENEVE SECURITIES HOLDING CORP.
By /s/ Steven B. Lapin
-------------------
Its ________________
CHAPARRAL INTERNATIONAL RE.
By /s/ Steven B. Lapin
-------------------
Its ________________
SIGNATURE PAGE TO CONSENT TO TERMINATION
<PAGE>
Page 14 of 27 Pages
EXHIBIT C
ZIMMERMAN SIGN COMPANY
REGISTRATION AGREEMENT
----------------------
THIS AGREEMENT is made as of September 30, 1998, between
Zimmerman Sign Company, a Texas corporation (the "Company"),
Continental Illinois Venture Corporation, a Delaware corporation
("CIVC"), MIG Partners VIII, a Delaware partnership ("MIG"), and
each of the other persons identified on the signature pages
hereto (collectively, the "Other Stockholders" and each, an
"Other Stockholder"). CIVC and MIG are referred to herein
collectively as the "Investors" and each is referred to herein
individually as an "Investor. " The Investors and the Other
Stockholders are referred to herein collectively as the
"Stockholders" and individually as a "Stockholder".
The Company, the Investors and certain of the Other
Stockholders are parties to a Senior Subordinated Note,
Preferred Stock and Warrant Purchase Agreement of even date
herewith (the "Purchase Agreement"). In order to induce the
Investors to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a
condition to the Closing under the Purchase Agreement. Unless
otherwise provided in this Agreement, capitalized terms used
herein shall have the meanings set forth in Section 9 hereof.
The parties hereto agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time after the date
hereof the holders of a majority of the Investor Registrable
Securities (the "Majority Investor Holders") may request
registration under the Securities Act of 1933, as amended (the
"Securities Act") of all or any portion of their Registrable
Securities on Form S-1 or any similar long-form registration
("Long-Form Registrations") or on Form S-2 or S-3 or any similar
short-form registration ("Short-Form Registrations") if
available. All registrations requested pursuant to this
paragraph l(a) are referred to herein as "Demand Registrations."
Each request for a Demand Registration shall specify the
approximate number of Registrable Securities requested to be
registered, the anticipated per share price range for such
offering and the intended method of disposition. Within ten (10)
days after receipt of any such request, the Company shall give
written notice of such requested registration to all other
holders of Registrable Securities and shall include in such
registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein
within 15 days after the receipt of the Company's notice.
(b) Long-Form Registrations. The Majority Investor Holders
shall be entitled to request two (2) Long-Form Registrations in
which the Company shall pay all Registration Expenses (as
defined in Section 6(a)) associated with the public offering of
the Company's equity securities
<PAGE>
Page 15 of 27 Pages
Investor Holders. A registration shall not count as one of the
permitted Long-Form Registrations until it has become effective
and neither the last nor any subsequent Long-Form Registration
shall count as one of the permitted Long-Form Registrations
unless the holders of Registrable Securities are able to
register and sell all of the Registrable Securities requested to
be included in such registration; provided that in any event the
Company shall pay all Registration Expenses in connection with
any registration initiated as a Long-Form Registration whether
or not it has become effective and whether or not such
registration has counted as one of the Long-Form Registrations.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Section l(b), the Majority
Investor Holders shall be entitled to request five (5)
Short-Form Registrations in which the Company shall pay all
Registration Expenses; provided that in each such Short-Form
Registration the holders of Registrable Securities shall request
to include in such registration at least 25% of the Registrable
Securities held by them in the aggregate as of the date hereof
(or such lesser amount if less than 25% are unregistered as of
such demand). Demand Registrations shall be Short-Form
Registrations whenever the Company is permitted to use any
applicable short form.
(d) Restrictions on Demand Registrations. The Company shall
not be obligated to effect any Demand Registration within 180
days after the effective date of a previous Demand Registration
or a previous registration in which the holders of Registrable
Securities were given piggyback rights pursuant to Section 2 and
in which there was no reduction in the number of Registrable
Securities requested to be included. The Company may postpone
for up to 180 days (from the date of the request) the filing or
the effectiveness of a registration statement for a Demand
Registration if the Company's board of directors determines in
its reasonable good faith judgment that such Demand Registration
would reasonably be expected to have a material adverse effect
on any proposal or plan by the Company or any of its
Subsidiaries to engage in any acquisition of assets (other than
in the ordinary course of business) or any merger,
consolidation, tender offer, reorganization or similar
transaction; provided that in such event, the holders of
Registrable Securities initially requesting such Demand
Registration shall be entitled to withdraw such request and, if
such request is withdrawn, such Demand Registration shall not
count as one of the permitted Demand Registrations hereunder and
the Company shall pay all Registration Expenses in connection
with such registration. The Company may delay a Demand
Registration hereunder only once in any twelve month period.
(e) Selection of Underwriters. In any Demand Registration,
the Company shall have the right to select the investment
banker(s) and manager(s) to administer the offering, provided
that the investment banker(s) and manager(s) so selected are
reasonably satisfactory to the Majority Investor Holders.
<PAGE>
Page 16 of 27 Pages
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to
register any of its securities under the Securities Act (other
than pursuant to (i) a Demand Registration or (ii) pursuant to a
registration on Form S-4 or S-8 or any successor or similar
forms) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback
Registration"), the Company shall give prompt written notice (in
any event within ten (10) days after its receipt of notice of
any exercise of demand registration rights other than under this
Agreement) to all holders of Registrable Securities of its
intention to effect such a registration and shall include in
such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion
therein within 15 days after the receipt of the Company's
notice.
(b) Piggyback Expenses. The Registration Expenses of the
holders of Registrable Securities shall be paid by the Company
in all Piggyback Registrations.
(c) Priority on Piggyback Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf
of the Company, and the managing underwriters advise the Company
in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting
the marketability of the offering, the Company shall include in
such registration (i) first, the securities the Company proposes
to sell, and (ii) second, the Registrable Securities requested
to be included in such registration pro rata among the holders
thereof on the basis of the number of shares of Registrable
Securities owned by each such holder, and (iii) third, other
securities requested to be included in such registration pro
rata among the holders of such securities and any other
securities held by others requested to be included in such
registration, pro rata among the holders thereof on the basis of
the number of shares requested to be included in such
registration.
(d) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf
of holders of the Company's securities (other than the parties
hereto) who have been granted contractual demand registration
rights, and the managing underwriters advise the company in
writing that in their opinion the number of securities requested
to be included in such registration exceeds the number which can
be sold in such offering without adversely affecting the
marketability of the offering, the Company will include in such
registration (i) first, the securities requested to be included
therein by the holders requesting such registration, pro rata
among the holders of such securities on the basis of the number
of shares owned by each such holder, (ii) second, the
Registrable Securities requested to be included in such
registration, pro rata among the holders thereof on the basis of
the number of shares of Registrable Securities owned by each
such holder, and (iii) third, other securities requested to be
included in such registration pro rata among the holders of such
securities.
<PAGE>
Page 17 of 27 Pages
(e) Selection of Underwriters. In any Piggyback
Registration, the Company shall have the right to select the
investment banker(s) and manager(s) to administer the offering.
3. Holdback Agreements.
(a) The Company shall not effect any public sale or
other distribution (including sales pursuant to Rule 144) of its
equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the
seven (7) days prior to and during the 180-day period beginning
on the effective date of any underwritten Demand Registration or
any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form
S-8 or any successor form), unless the underwriters managing the
registered public offering otherwise agree.
(b) Each holder of Registrable Securities shall not
effect any public sale or other distribution (including sales
pursuant to Rule 144) of equity securities of the Company, or
any securities convertible into or exchangeable or exercisable
for such securities during the seven days prior to and during
the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback
Registration in which Registrable Securities are eligible for
inclusion (except as part of such underwritten registration or
pursuant to registrations on Form S-8 or any successor form),
unless the underwriters managing the registered public offering
otherwise agree.
4. Registration Procedures. Whenever the holders of
Registrable Securities have requested that any Registrable
Securities be registered pursuant to this Agreement, the Company
shall use its best efforts to effect the registration and the
sale of such Registrable Securities in accordance with the
intended method of disposition thereof (including the
registration of the Warrants held by a holder of Registrable
Securities requesting registration as to which the Company has
received reasonable assurances that only Common Stock shall be
distributed to the public), and pursuant thereto the Company
shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange
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 a registration statement or prospectus or any amendments
or supplements thereto, the Company shall furnish to the counsel
selected by the holders of a majority of the Registrable
Securities covered by such registration statement copies of all
such documents proposed to be filed, which documents shall be
subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and
prepare and file with the Securities and Exchange 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 for a
period of not less than 180 days and comply with the provisions
of the Securities Act with
<PAGE>
Page 18 of 27 Pages
respect to the disposition of all securities covered by such
registration statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth
in such registration statement;
(c) furnish to each seller of Registrable Securities such
number of requested copies of such registration statement, each
amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary
prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(d) use its reasonable best efforts to register or qualify
such Registrable Securities under such other securities or blue
sky laws of such jurisdictions as any seller reasonably requests
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities
owned by such seller (provided that the Company shall not be
required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify
but for this subparagraph, (ii) subject itself to taxation in
any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, 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 contains an untrue statement of a
material fact or omits any fact necessary to make the statements
therein not misleading, and, at the request of any such seller,
the Company shall prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus shall not contain
an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
provided that upon such notification by the Company, each seller
of such Registrable Securities will not offer or sell such
Registrable Securities until the Company has notified such
seller that it has prepared a supplement or amendment to such
prospectus and delivered copies of such supplement or amendment
to such seller;
(f) cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by
the Company are then listed and, if not so listed, to be listed
on the NASD automated quotation system and, if listed on the
NASD automated quotation system, use its best efforts to secure
designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system
security" within the meaning of Rule 11 Aa2-1 of the Securities
and Exchange Commission or, failing that, to secure NASDAQ
authorization for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at
least two market makers to register as such with respect to such
Registrable Securities with the NASD;
<PAGE>
Page 19 of 27 Pages
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
registration statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such
other actions as the holders of a majority of the Registrable
Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of
such Registrable Securities (including effecting a stock split
or a combination of shares);
(i) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any
disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by any such seller
or underwriter (in each case after reasonable prior notice), all
financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply, on a
confidential basis, all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in
connection with such registration statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange
Commission, and make available to its security holders, as soon
as reasonably practicable, an earnings statement covering the
period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11 (a) of the Securities
Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which
holder, in its sole and exclusive judgment, might be deemed to
be an underwriter or a controlling person of the Company, to
participate in the preparation of such registration or
comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the
reasonable judgment of such holder and its counsel should be
included;
(l) in the event of the issuance of any stop order
suspending the effectiveness of a registration statement, or of
any order suspending or preventing the use of any related
prospectus or suspending the qualification of any common stock
included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to
obtain the withdrawal of such order; and
(m) obtain a comfort letter from the Company's independent
public accountants in customary form and covering such matters
of the type customarily covered by comfort letters as the
holders of a majority of the Registrable Securities being sold
reasonably request (provided that such Registrable Securities
constitute at least 10% of the securities covered by such
registration statement).
<PAGE>
Page 20 of 27 Pages
Each seller of Registrable Securities, upon receipt of any
notice from the Company of the happening of any event of the
kind described in subsection (e) of this Section 4, will
forthwith discontinue disposition of the Registrable Securities
until receipt by the seller of Registrable Securities of the
copies of the supplemented or amended prospectus contemplated by
subsection (e) of this Section 4 or until it is advised in
writing (the "Advice") by the Company that the use of the
prospectus may be resumed and has received copies of any
additional or supplemental filings which are incorporated by
reference in the prospectus, and if so directed by the Company,
such seller of Registrable Securities will, or will request the
managing underwriter or underwriters, if any, to deliver to the
Company (at the Company's expense) all copies (other than
permanent file copies) then in the possession of such seller of
Registrable Securities and of any underwriter or underwriters,
of the prospectus covering such Registrable Securities current
at the time of receipt of such notice. In the event the Company
shall give any such notice, the time periods mentioned in
subsection (b) of this Section 4 shall be extended by the number
of days during the period from and including the date of the
giving of such notice to and including the date when each seller
of Registrable Securities covered by such registration statement
shall have received the copies of the supplemented or amended
prospectus contemplated by subsection (e) of this Section 4
hereof or the Advice.
5. Cooperation by Holders of Registrable Securities
(a) Each seller of Registrable Securities will furnish to
the Company in writing such information as the Company may
reasonably require from time to time from such seller, and
otherwise reasonably cooperate with the Company in connection
with any registration with respect to such holder's Registrable
Securities.
(b) The failure of any prospective seller of Registrable
Securities to furnish any information or documents in accordance
with any provision contained in this Agreement shall not affect
the obligations of the Company hereunder to any remaining
sellers who furnish such information and documents unless, in
the reasonable opinion of counsel to the Company or the
underwriters, such failure impairs or may impair the viability
of the or the legality of any registration statement in
connection therewith.
(c) At the end of any period during which the Company is
obligated to keep any registration statement current and
effective as provided in Section 4, the holders of Registrable
Securities included in such registration statement shall
discontinue sales of shares pursuant to such registration
statement upon receipt of notice from the Company of its
intention to remove from registration the shares covered by such
registration statement which remain unsold and such holders
shall notify the Company of the number of shares registered
which remain unsold promptly after receipt of such notice from
the Company.
<PAGE>
Page 21 of 27 Pages
6. Registration Expenses.
(a) All expenses incident to the Company's performance of
or compliance with this Agreement, including without limitation
all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws, printing expenses,
messenger and delivery expenses, fees and disbursements of
custodians, and fees and disbursements of counsel for the
Company and all independent certified public accountants,
underwriters (excluding discounts, commissions, and undocumented
expense allowances) and other Persons (as defined in the
Purchase Agreement) retained by the Company (all such expenses
being herein called "Registration Expenses"), shall be borne as
provided in this Agreement, except that the Company shall, in
any event, pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any
liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed or on
the NASD automated quotation system.
(b) In connection with each Demand Registration and each
Piggyback Registration, the Company shall reimburse the holders
of Investor Registrable Securities included in such registration
for the reasonable fees and disbursements of one counsel chosen
by the holders of a majority of the Investor Registrable
Securities initially requesting such registration. The Company
shall not be required to pay or obtain reimbursement for
excessive discounted fees and commissions attributable to a sale
of the Company and fees and/or expenses of other experts
retained by the holders of Registrable Securities.
(c) To the extent Registration Expenses are not required to
be paid by the Company, each holder of securities included in
any registration hereunder shall pay those Registration Expenses
allocable to the registration of such holder's securities so
included, and any Registration Expenses not so allocable shall
be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the
securities to be so registered.
(d) The Company will not bear the cost of or pay for any
stock transfer tax imposed in respect of the transfer of any
Registrable Securities to any purchaser thereof by any holder of
Registrable Securities in connection with any registration of
Registrable Securities pursuant to this Agreement.
7. Indemnification.
(a) The Company agrees to indemnify, to the extent
permitted by law, each holder of Registrable Securities
(requesting or joining in a registration hereunder), its
officers and directors and each Person who controls (within the
meaning of the Securities Act) such holder against all losses,
claims, damages, liabilities and expenses caused by any untrue
or alleged untrue statement of material fact contained in any
registration statement, prospectus or
<PAGE>
Page 22 of 27 Pages
preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same
are caused by or contained in any information furnished in
writing to the Company by such holder expressly for use therein
or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder
with a sufficient number of copies of the same. In connection
with an underwritten offering the Company shall indemnify such
underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities
Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which
a holder of Registrable Securities is participating, each such
holder shall furnish to the Company in writing such information
and affidavits as the Company reasonably requests for use in
connection with any such registration statement or prospectus
and, to the extent permitted by law, shall indemnify the
Company, its directors and officers and each Person who controls
(within the meaning of the Securities Act) the Company against
any losses, claims, damages, liabilities and expenses resulting
from any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that
such untrue statement or omission is contained in any
information or affidavit so furnished in writing by such holder;
provided that the obligation to indemnify shall be limited to
the net amount of proceeds received by such holder from the sale
of Registrable Securities pursuant to such registration
statement. In connection with an underwritten offering in which
a holder of Registrable Securities is participating, each such
holder shall indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the
Company.
(c) Any Person entitled to indemnification hereunder shall
(i) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification (provided
that the failure to give prompt notice shall not impair any
Person's right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party shall not be
subject to any liability for any settlement made by the
indemnified party without its consent (but such consent shall
not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim
shall not be obligated to pay the fees and expenses of more than
one counsel for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may
exist
<PAGE>
Page 23 of 27 Pages
between such indemnified party and any other of such indemnified
parties with respect to such claim.
(d) The indemnification provided for under this Agreement
shall remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or
any officer, director or controlling Person of such indemnified
party and shall survive the transfer of securities. The parties
hereto also agree to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such
party in the event such party's indemnification is unavailable
for any reason.
8. Participation in Underwritten Registrations. No Person
may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's
securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the
terms of such underwriting arrangements; provided that no holder
of Registrable Securities included in any underwritten
registration shall be required to make any representations or
warranties to the Company or the underwriters (other than
representations and warranties regarding such holder and such
holder's intended method of distribution) or to undertake any
indemnification obligations to the Company or the underwriters
with respect thereto, except as otherwise provided in Section 7
hereof.
9. Definitions.
(a) "Investor Registrable Securities" means (i) any Common
Stock issued to CIVC or MIG, (ii) any Common Stock issued or
issuable upon the exercise or otherwise in respect of the
Warrants issued pursuant to the Purchase Agreement, (iii) any
Common Stock issued or issuable with respect to the securities
referred to in clauses (i) and (ii) above by way of a stock
dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other
reorganization, and (iv) any other shares of Common Stock held
by the Investors holding securities described in clauses (i),
(ii) and (iii), inclusive, above. As to any particular Investor
Registrable Securities, such securities shall cease to be
Investor Registrable Securities when they have been distributed
to the public pursuant to a offering registered under the
Securities Act or sold to the public through a broker, dealer or
market maker in compliance with Rule 144 under the Securities
Act (or any similar rule then in force) or repurchased by the
Company or any Subsidiary. For purposes of this Agreement, a
Person shall be deemed to be a holder of Investor Registrable
Securities, and the Registrable Securities shall be deemed to be
in existence, whenever such Person has the right to acquire
directly or indirectly such Registrable Securities (upon
conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not
such acquisition has actually been effected, and such Person
shall be entitled to exercise the rights of a holder of Investor
Registrable Securities hereunder.
<PAGE>
Page 24 of 27 Pages
(b) "Other Registrable Securities" means (i) any Common
Stock held by or issued to any Other Stockholder, (ii) any
Common Stock issued or issuable with respect to the securities
referred to in clause (i) above by way of a stock dividend or
stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
As to any particular Other Registrable Securities, such
securities shall cease to be Other Registrable Securities when
they have been distributed to the public pursuant to a offering
registered under the Securities Act or sold to the public
through a broker, dealer or market maker in compliance with Rule
144 under the Securities Act (or any similar rule then in force)
or repurchased by the Company or any Subsidiary. For purposes of
this Agreement, a Person shall be deemed to be a holder of Other
Registrable Securities, and the Other Registrable Securities
shall be deemed to be in existence, whenever such Person has the
right to acquire directly or indirectly such Other Registrable
Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected, and
such Person shall be entitled to exercise the rights of a holder
of Other Registrable Securities hereunder.
(c) "Registrable Securities" means, collectively, the
Investor Registrable Securities and the Other Registrable
Securities.
(d) Unless otherwise stated, other capitalized terms
contained herein have the meanings set forth in the Purchase
Agreement.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company shall not
hereafter enter into any agreement with respect to its
securities which is inconsistent with or violates the rights
granted to the holders of Registrable Securities in this
Agreement.
(b) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended or
waived only upon the prior written consent of the Company and
holders of a majority of the Registrable Securities.
(c) Severabilitv. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in
any jurisdiction, such invalidity, illegality or
unenforceability shall not affect the validity, legality or
enforceability of any other provision of this Agreement in such
jurisdiction or affect the validity, legality or enforceability
of any provision in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision had never
been contained herein.
(d) Successors and Assigns. All covenants and agreements
in this Agreement by or on behalf of any of the parties hereto
shall bind and inure to the benefit of the respective
<PAGE>
Page 25 of 27 Pages
successors and assigns of the parties hereto whether so
expressed or not; in addition, whether or not any express
assignment has been made, the provisions of this Agreement which
are for the benefit of purchasers or holders of Registrable
Securities are also for the benefit of, and enforceable by, any
subsequent holder of Registrable Securities.
(e) Entire Agreement. Except as otherwise expressly set
forth herein, this Agreement embodies the complete agreement and
understanding among the parties hereto with respect to the
subject matter hereof and supersedes and preempts any prior
understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject
matter hereof in any way.
(f) Counterparts. This Agreement may be executed in two
or more counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts
taken together shall constitute one and the same Agreement.
(g) Remedies. Any Person having rights under any provision
of this Agreement shall be entitled to enforce such rights
specifically to recover damages caused by reason of any breach
of any provision of this Agreement and to exercise all other
rights granted by law. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach
of the provisions of this Agreement and that any party may in
its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other
security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the
provisions of this Agreement.
(h) Governing Law. The corporate law of the State of Texas
shall govern all issues and questions concerning the relative
rights of the Company and its stockholders and other issues and
questions concerning the construction, validity, interpretation
and enforcement of this Agreement and the exhibits and schedules
hereto without giving effect to any choice of law or conflict of
law rules or provisions.
(i) Notices. Any notice provided for in this Agreement
shall be in writing and shall be either personally delivered,
sent by telecopy, mailed first class mail (postage prepaid) or
sent by reputable overnight courier service (charges prepaid) to
the Company at the address set forth below and to any other
recipient at the address indicated on the schedules hereto and
to any subsequent holder of Underlying Stock subject to this
Agreement at such address as indicated by the Company's records,
or at such address or to the attention of such other person as
the recipient party has specified by prior written notice to the
sending party. Notices shall be deemed to have been given
hereunder upon receipt when delivered personally or by telecopy,
three business days after deposit in the U. S. mail and on the
first business day after deposit with a reputable overnight
courier service (postage provided for and with instructions for
overnight delivery). The Company's address is:
<PAGE>
Page 26 of 27 Pages
Zimmerman Sign Company
9846 Hwy 31 East
Tyler, Texas 75705
(j) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
ZIMMERMAN SIGN COMPANY
By: /s/ David E. Anderson
---------------------
Name: David E. Anderson
Its: Chairman
INVESTORS:
---------
CONTINENTAL ILLINOIS VENTURE
CORPORATION
By: /s/ Robert Perille
------------------
Name: Robert Perille
Its: Managing Director
MIG PARTNERS VIII
By: /s/ Robert Perille
------------------
Name: Robert Perille
Its: General Partners
<PAGE>
Page 27 of 27 Pages
OTHER STOCKHOLDERS:
------------------
/s/ David E. Anderson
---------------------
/s/ Tom E. Boner
----------------
SOUTHERN INVESTORS CORP.
By /s/ Steven B. Lapin
-------------------
Its __________________
SOUTHERN MORTGAGE HOLDING
CORPORATION
By /s/ Steven B. Lapin
-------------------
Its __________________
GENEVE SECURITIES PORTFOLIO CORP.
By /s/ Steven B. Lapin
-------------------
Its __________________
GENEVE SECURITIES HOLDING CORP.
By /s/ Steven B. Lapin
-------------------
Its __________________
CHAPARRAL INTERNATIONAL RE.
By /s/ Steven B. Lapin
-------------------
Its __________________
SIGNATURE PAGE TO REGISTRATION AGREEMENT
