EXHIBIT 3
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of November 5, 2003
(this "Agreement"), by and among Aegis Communications Group, Inc., a Delaware
corporation (the "Company"), Deutsche Bank AG - London acting through DB
Advisors, LLC as investment advisor ("DB"), Essar Global Limited ("Essar" and
collectively with DB, the "Purchasers") and Questor Partners Fund II, L.P., a
Delaware limited partnership ("Fund II"), Questor Side-by-Side Partners II,
L.P., a Delaware limited partnership (the "Side-By-Side Fund"), Questor
Side-by-Side Partners II 3(c)(1), L.P., a Delaware limited partnership (the
"3(C)(1) Fund", and together with Fund II and the Side-by-Side Fund, "Questor"),
Xxxxxx Equity Investors III, L.P., a Delaware limited partnership ("Xxxxxx
Equity"), TC Co-Investors, LLC, a Delaware limited liability company ("TC
Co-Investors", and together with Xxxxxx Equity, "Xxxxxx"), Xxxxxx Xxxxx, and The
Xxxxxx Xxxxx 1995 Grantor Retained Annuity Trust.
WHEREAS, the Purchasers are purchasing warrants (the
"Warrants") to purchase 527,661,932 shares of the Company's common stock, par
value $0.01 per share (the "Common Stock"), and secured promissory notes in the
principal amount of $15,887,500 (the "Notes") pursuant to that certain Note and
Warrant Purchase Agreement dated as of the date hereof (the "Purchase
Agreement"), between the Company and the Purchasers.
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, it is agreed as follows:
1. Definitions. (a) Unless otherwise defined herein, the terms
below shall have the following meanings (such meanings being equally applicable
to both the singular and plural forms of the terms defined):
"Affiliate" shall mean, with respect to any specified Person,
any other Person that directly, or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common Control with,
such specified Person.
"Agreement" shall mean this Registration Rights Agreement,
including all amendments, modifications and supplements and any exhibits or
schedules to any of the foregoing.
"Business Day" shall mean any day that is not a Saturday, a
Sunday or a day on which commercial banks are required or authorized by law to
be closed in the State of New York.
"Control" (including the terms "Controlled by" and "under
common Control with") means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, as trustee or executor, by
contract or otherwise, including, without limitation, the ownership, directly or
indirectly, of securities having the power to elect a majority of the board of
directors or similar body governing the affairs of such Person.
"Effective Period" shall mean the period commencing with the
effective date of the Shelf Registration Statement and ending upon the earlier
of (i) the termination of the registration rights pursuant to Section 5 hereof
and (ii) such time as the Purchasers cease to own any Registrable Securities.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and all rules and regulations promulgated thereunder.
"Existing Holders" shall mean the Existing Stockholders that
hold Registrable Securities.
"Existing Registrable Securities" shall mean (a) the shares of
Common Stock held by, or issuable upon conversion of preferred stock to, the
Existing Stockholders and (b) any securities issuable or issued or distributed
in respect of any of the Common Stock identified in clause (a) by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, reorganization, merger, consolidation or otherwise.
"Existing Stockholders" shall mean Questor, Xxxxxx, Xxxxxx
Blank and The Xxxxxx Xxxxx 1995 Grantor Retained Annuity Trust.
"Holders" shall means the Existing Holders and the New
Holders.
"NASD" shall mean the National Association of Securities
Dealers, Inc., or any successor entity thereof.
"New Holders" shall mean the Purchasers, and any transferees
of the Purchasers to whom Registrable Securities are permitted to be transferred
in accordance with the terms of this Agreement and the Purchase Agreement, and,
in each case, who continue to be entitled to the rights of a Holder hereunder.
"New Registrable Securities" shall mean (a) the shares of
Common Stock issuable upon exercise of the Warrants and (b) any securities
issuable or issued or distributed in respect of any of the Common Stock
identified in clause (a) by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, reorganization,
merger, consolidation or otherwise.
"Person" shall mean any individual, corporation, partnership,
joint venture, firm, trust, unincorporated organization, government or any
agency or political subdivision thereof or other entity.
"Prospectus" shall mean the Prospectus (including any summary
Prospectus, preliminary Prospectus and any final Prospectus) included in the
Registration Statement as amended or supplemented by any supplement with respect
to the terms of the offering of any portion of the Registrable Securities
pursuant to a Demand Registration or Piggy-Back Registration and by all other
amendments and supplements thereto, including post-effective amendments and any
material incorporated by reference therein.
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"Registrable Securities" shall mean the Existing Registrable
Securities and the New Registrable Securities. For purposes of this Agreement,
Registrable Securities shall cease to be Registrable Securities when (i) a
Registration Statement covering such Registrable Securities has been declared
effective under the Securities Act by the SEC and such Registrable Securities
have been disposed of pursuant to such effective Registration Statement or (ii)
such Registrable Securities may be sold pursuant to Rule 144(k) of the
Securities Act.
"Registration Statement" shall mean the Demand Registration
Statement, the Piggy-Back Registration Statement and/or the Shelf Registration
Statement, as the case may be, including the Prospectus contained therein, any
amendments to such Registration Statement (including post-effective amendments)
and all exhibits and any material incorporated by reference in such Registration
Statement.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and all rules and regulations promulgated thereunder.
"SEC" shall mean the Securities and Exchange Commission, or
any successor thereto.
(b) The following terms have the meanings set forth in the
Section set forth opposite such term:
TERM SECTION
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Blackout Period 6
Common Stock Recitals
Demand for Registration 3(c)
Demand Registration 3(a)
Demand Registration Statement 3(a)
Indemnified Party 10(d)
Indemnifying Party 10(d)
Maximum Number of Securities 3(b)
Notes Recitals
Participating Demand Holders 3(a)
Participating Piggy-Back Holders 4(b)
Piggy-Back Registration 4(a)
Piggy-Back Registration Statement 4(a)
Purchase Agreement Recitals
Purchasers Recitals
Shelf Registration Statement 2
Warrants Recitals
2. Shelf Registration Statement. If the Company qualifies for
use of the applicable form of registration statement, within 90 days after the
date hereof, the Company shall file with the SEC, and thereafter use its
reasonable best efforts to have declared effective as soon as practicable after
the filing thereof, a "shelf" Registration Statement (a "Shelf Registration
Statement") on Form S-3 (or any successor form) pursuant to Rule 415 under the
Securities Act or on such other form as may be appropriate under the Securities
Act, in each case, covering the
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resale of all of the New Registrable Securities. The Company shall, subject to
customary terms and conditions, use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective from the date that such
Shelf Registration Statement is declared effective during the Effective Period
to the extent required to permit the disposition (in accordance with the
intended method or methods thereof, as aforesaid) of the New Registrable
Securities so registered.
3. Demand Registration.
(a) After receipt of a written request from one or more New
Holders requesting that the Company effect a registration (a "Demand
Registration") under the Securities Act covering all or part of the Registrable
Securities which specifies the intended method or methods of disposition thereof
and the number of shares to be registered, the Company shall promptly notify all
Holders in writing of the receipt of such request and each such Holder, in lieu
of exercising its rights under Section 4 hereof, may elect (by written notice
sent to the Company within ten (10) Business Days from the date of such Holder's
receipt of the aforementioned notice from the Company) to have all or part of
such Holder's Registrable Securities included in such registration thereof
pursuant to this Section 3, and such Holder shall specify in such notice the
number of Registrable Securities that such Holder elects to include in such
registration. Thereupon, the Company shall, as expeditiously as is practicable,
but in any event no later than thirty (30) days (excluding any days which occur
during a permitted Blackout Period under Section 6 below) after receipt of a
written request for a Demand Registration, file with the SEC and use its
reasonable best efforts to cause to be declared effective a registration
statement (a "Demand Registration Statement") relating to all shares of
Registrable Securities that the Company has been so requested to register by
such Holders ("Participating Demand Holders") for sale, to the extent required
to permit the disposition (in accordance with the intended method or methods
thereof, as aforesaid) of the Registrable Securities so registered; provided,
however, that the aggregate value of the Registrable Securities requested to be
registered (i) be at least $2,500,000, based on the closing trading price of the
Common Stock on the date the demand to file such Demand Registration Statement
is made, (ii) be at least 25% of the New Registrable Securities initially
issuable upon exercise of the Warrants or (iii) include all Registrable
Securities which remain outstanding at such time.
(b) If the majority-in-interest of the Participating Demand
Holders in a Demand Registration relating to a public offering requests that the
offering be underwritten with a managing underwriter selected in the manner set
forth in Section 14 below and such managing underwriter of such Demand
Registration advises the Company in writing that, in its opinion, the number of
securities to be included in such offering is greater than the total number of
securities which can be sold therein without having a material adverse effect on
the distribution of such securities or otherwise having a material adverse
effect on the marketability thereof (the "Maximum Number of Securities"), then
the Company shall include in such Demand Registration the Registrable Securities
that the Participating Demand Holders have requested to be registered thereunder
only to the extent the number of such Registrable Securities does not exceed the
Maximum Number of Securities. If such amount exceeds the Maximum Number of
Securities, the number of Registrable Securities included in such Demand
Registration shall be allocated first, among all the New Holders participating
in such Demand Registration on a pro rata basis (based on the number of
Registrable Securities requested to be included in such Demand Registration by
each New Holder), and, second, to the Existing Holders on a pro rata basis
(based on the number of Registrable Securities requested to be included in such
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Demand Registration by each Existing Holder); provided, however, that in no
event may Registrable Securities held by the Existing Holders be included in
such Demand Registration unless all of the Registrable Securities requested to
be included in the Demand Registration by the New Holders are included in such
Demand Registration. If the amount of such Registrable Securities does not
exceed the Maximum Number of Securities, the Company may include in such Demand
Registration any other securities of the Company and other securities held by
other security holders of the Company as the Company may in its discretion
determine or be obligated to allow, in an amount, which together with the
Registrable Securities included in such Demand Registration, shall not exceed
the Maximum Number of Securities.
(c) New Holders shall be entitled to an aggregate of four (4)
registrations of Registrable Securities pursuant to this Section 3 (each, a
"Demand for Registration") in addition to the Shelf Registration Statement
pursuant to Section 2; provided that a registration requested pursuant to this
Section 3 shall not be deemed to have been effected for purposes of this Section
3(c) unless (i) it has been declared effective by the SEC, (ii) it has remained
effective for the period set forth in Section 7(a), (iii) Holders of Registrable
Securities included in such registration have not, prior to the filing of the
relevant Demand Registration Statement, withdrawn sufficient shares from such
registration such that the remaining Holders requesting registration would not
have been able to request registration under the provisions of Section 3, and
(iv) the offering of Registrable Securities pursuant to such registration is not
subject to any stop order, injunction or other order or requirement of the SEC
(other than any such stop order, injunction, or other order or requirement of
the SEC prompted by act or omission of Holders of Registrable Securities);
provided, however, that if the New Holders participating in such Demand
Registration are not able to register and sell at least two-thirds of the New
Registrable Securities requested to be included in a Demand Registration, then
such Demand Registration shall not be counted as one of the five Demands for
Registration provided for pursuant to this Section 3(c).
(d) Notwithstanding anything to the contrary contained herein,
the Company shall not be required to prepare and file (i) more than two (2)
Demand Registration Statements in any twelve-month period, (ii) any Demand
Registration Statement within 90 days following the date of effectiveness of any
other Registration Statement or (iii) any Demand Registration Statement within
90 days following the date of effectiveness of any other registration statement
filed pursuant to any other registration rights agreement to which the Company
is a party or with respect to the sale of Common Stock by the Company (or such
longer period of time as may be specified in an underwriting agreement relating
to such registration statement).
4. Piggy-Back Registration.
(a) If the Company proposes to file on its behalf and/or on
behalf of any holder of its securities (other than a Holder of Registrable
Securities) a registration statement under the Securities Act on any form (other
than a registration statement on Form S-4 or S-8 or any successor form for
securities to be offered in a transaction of the type referred to in Rule 145
under the Securities Act or to employees of the Company pursuant to any employee
benefit plan, respectively) for the registration of Common Stock (a "Piggy-Back
Registration"), it will give
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written notice to all Holders at least twenty (20) days before the initial
filing with the SEC of such registration statement (a "Piggy-Back Registration
Statement"), which notice shall set forth the intended method of disposition of
the securities proposed to be registered by the Company. The notice shall offer
to include in such filing the aggregate number of shares of Registrable
Securities as such Holders may request.
(b) Each Holder desiring to have Registrable Securities
registered under this Section 4 ("Participating Piggy-Back Holders") shall
advise the Company in writing within ten (10) days after the date of receipt of
such offer from the Company, setting forth the amount of such Registrable
Securities for which registration is requested. The Company shall thereupon
include in such filing the number or amount of Registrable Securities for which
registration is so requested, subject to paragraph (c) below, and shall use its
reasonable best efforts to effect registration of such Registrable Securities
under the Securities Act.
(c) If the Piggy-Back Registration relates to an underwritten
public offering and the managing underwriter of such proposed public offering
advises in writing that, in its opinion, the amount of Registrable Securities
requested to be included in the Piggy-Back Registration in addition to the
securities being registered by the Company would be greater than the Maximum
Number of Securities (having the same meaning as defined in Section 3 but
replacing the term "Demand Registration" with "Piggy-Back Registration"), then:
(i) in the event the Company initiated the Piggy-Back
Registration, the Company shall include in such Piggy-Back
Registration, first, the securities the Company proposes to register
and, second, the Registrable Securities of all Participating Piggy-Back
Holders, proposed to be included in such Piggy-Back Registration in an
amount which, together with the securities the Company proposes to
register, shall not exceed the Maximum Number of Securities, such
amount to be allocated, first, to the New Holders requesting
Registrable Securities be included in the Piggy-Back Registration on a
pro rata basis (based on the aggregate number of Registrable Securities
requested by such New Holders to be included in the Piggy-Back
Registration Statement) and, second, to the Existing Holders requesting
Registrable Securities be included in the Piggy-Back Registration
Statement on a pro rata basis (based on the aggregate number of
Registrable Securities requested by such Existing Holders to be
included in the Piggy-Back Registration Statement); provided, however,
that in no event may Registrable Securities held by the Existing
Holders be included in such Piggy-Back Registration unless all of the
Registrable Securities requested to be included in such Piggy-Back
Registration by the New Holders are included in such Piggy-Back
Registration;
(ii) in the event any holder or holders of securities of the
Company initiated the Piggy-Back Registration, the Company shall
include in such Piggy-Back Registration, first, the securities such
initiating security holder or holders propose to register, second, the
Registrable Securities of all Participating Piggy-Back Holders proposed
to be included in such Piggy-Back Registration, in an amount which,
together with the securities the initiating security holder or holders
propose to register, shall not exceed the Maximum Number of Securities,
such amount to be allocated among such Participating Piggy-Back
Holders, first, to the New Holders requesting Registrable Securities be
included in the Piggy-Back Registration Statement on a pro rata basis
(based on the
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aggregate number of Registrable Securities requested by such New
Holders to be included in the Piggy-Back Registration Statement) and,
second, to the Existing Holders requesting Registrable Securities be
included in the Piggy-Back Registration Statement on a pro rata basis
(based on the aggregate number of Registrable Securities requested by
such Existing Holders to be included in the Piggy-Back Registration
Statement); provided, however, that in no event may Registrable
Securities held by the Existing Holders be included in such Piggy-Back
Registration unless all of the Registrable Securities requested to be
included in such Piggy-Back Registration by the New Holders are
included in such Piggy-Back Registration.
(d) The Company will not hereafter enter into any agreement,
which is inconsistent with the rights of priority provided in paragraph
(c) above.
5. Termination of Registration Rights. (a) The registration
rights set forth in Sections 1, 2 and 3 above shall terminate at such time as
there cease to be any Registrable Securities.
(b) By execution hereof, the Company and the Existing
Stockholders hereby terminate all registration rights granted pursuant to (i)
the Securities Purchase and Registration Rights Agreement, dated April 7, 1998,
by and between ATC Communications Group, Inc. and Xxxxxx Equity and (ii) the
Series F Senior Voting Convertible Preferred Stock Purchase and Registration
Rights Agreement, dated August 25, 1999, by and among the Company and the
Existing Stockholders.
6. Blackout Periods. The Company shall have the right to delay
or defer the filing or effectiveness of a Registration Statement required
pursuant to Sections 3 and 4 hereof or suspend sales under any Shelf
Registration Statement filed hereunder during no more than three (3) periods
aggregating to not more than 60 days in any twelve-month period (a "Blackout
Period") in the event that (i) the Company would, in accordance with the advice
of its counsel, be required to disclose in the Prospectus information not
otherwise then required by law to be publicly disclosed and (ii) in the
reasonable judgment of the Company's Board of Directors, there is a reasonable
likelihood that such disclosure, or any other action to be taken in connection
with the Prospectus, would materially and adversely affect or interfere with any
financing, acquisition, merger, disposition of assets (not in the ordinary
course of business), corporate reorganization or other similar transaction
involving the Company; provided, however, that the Company shall delay during
such Blackout Period the filing or effectiveness of, or suspend sales under, any
Registration Statement required pursuant to the registration rights of the
holders of any other securities of the Company. The Company shall promptly give
the Holders written notice of such determination containing a general statement
of the reasons for such postponement and an approximation of the anticipated
delay.
7. Registration Procedures. Except as otherwise provided
herein, if the Company is required by the provisions of Section 2, 3 or 4 to use
its reasonable best efforts to effect the registration of any of its securities
under the Securities Act, the Company will, as expeditiously as practical:
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(a) prepare and file with the SEC a Registration Statement
with respect to such securities and use its reasonable best efforts to
cause such Registration Statement promptly to become and remain
effective for a period of time required for the disposition of such
securities by the holders thereof but not to exceed 30 days (except
with respect to a Shelf Registration Statement which shall remain
effective during the Effective Period); provided, however, that before
filing such Registration Statement or any amendments or supplements
thereto (for purposes of this subsection, amendments shall not be
deemed to include any filing that the Company is required to make
pursuant to the Exchange Act), the Company shall furnish the
representatives of the Holders referred to in Section 7(m) copies of
all documents proposed to be filed, which documents will be subject to
the reasonable review and comment of the representatives' counsel. The
Company shall not be deemed to have used its reasonable best efforts to
keep a Registration Statement effective during the applicable period if
it voluntarily takes any action that would result in the Holders of
such Registrable Securities not being able to sell such Registrable
Securities during that period, unless such action is undertaken for a
legitimate business purpose and the delay in effectiveness is required
under applicable law;
(b) prepare and file with the SEC such amendments and
supplements to such Registration Statement as may be necessary to keep
such Registration Statement effective and to comply with the provisions
of the Securities Act with respect to the sale or other disposition of
all securities covered by such Registration Statement until the earlier
of such time as all of such securities have been disposed of in a
public offering or the expiration of 30 days (except with respect to
the Shelf Registration Statement, for which such period shall be the
Effective Period);
(c) furnish to such Holders such number of conformed copies of
the applicable Registration Statement and each such amendment and
supplement thereto (including in each case all exhibits), and of any
Prospectus in conformity with the requirements of the Securities Act,
and such other documents, as such selling security holders may
reasonably request;
(d) use its reasonable best efforts to register or qualify the
securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions within the United
States and Puerto Rico as each Holder of such securities shall
reasonably request, to keep such registration or qualification in
effect for so long as such Registration Statement remains in effect,
and to take any other action which may be reasonably necessary to
enable such seller to consummate the disposition in such jurisdictions
of the securities owned by such Holder (provided, however, that the
Company shall not be required in connection therewith or as a condition
thereto to qualify to do business, subject itself to taxation in or to
file a general consent to service of process in any jurisdiction
wherein it would not but for the requirements of this paragraph (d) be
obligated to do so; and provided further that the Company shall not be
required to qualify such Registrable Securities in any jurisdiction in
which the securities regulatory authority requires that any Holder
submit any shares of its Registrable Securities to the terms,
provisions and restrictions of any escrow, lockup or similar
agreement(s) for consent to sell Registrable Securities in such
jurisdiction unless such Holder agrees to do so), and do such other
reasonable acts and things as may be required
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of it to enable such Holder to consummate the disposition in such
jurisdiction of the securities covered by such Registration Statement;
(e) furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to Section 3 or 4, if
the method of distribution is by means of an underwriting, on the date
that the shares of Registrable Securities are delivered to the
underwriters for sale pursuant to such registration, or if such
Registrable Securities are not being sold through underwriters, on the
date that the Registration Statement with respect to such shares of
Registrable Securities becomes effective, (1) a signed opinion, dated
such date, of the independent legal counsel representing the Company
for the purpose of such registration, addressed to the underwriters, if
any, and if such Registrable Securities are not being sold through
underwriters, then to the Holders making such request, as to such
matters as such underwriters or the Holders holding a majority of the
Registrable Securities included in such registration, as the case may
be, may reasonably request; and (2) letters dated such date and the
date the offering is priced from the independent certified public
accountants of the Company, addressed to the underwriters, if any, and
if such Registrable Securities are not being sold through underwriters,
then to the Holders making such request and, if such accountants refuse
to deliver such letters to such Holders, then to the Company (i)
stating that they are independent certified public accountants within
the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements and other financial data of the
Company included in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act and (ii) covering such other financial matters
(including information as to the period ending not more than five (5)
Business Days prior to the date of such letters) with respect to the
registration in respect of which such letter is being given as such
underwriters or the Holders holding a majority of the Registrable
Securities included in such registration, as the case may be, may
reasonably request and as would be customary in such a transaction;
(f) enter into customary agreements (including, if the method
of distribution is by means of an underwriting, an underwriting
agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition
of such Registrable Securities;
(g) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC, and make earnings
statements satisfying the provisions of Section 11(a) of the Securities
Act generally available to the Holders no later than 45 days after the
end of any twelve-month period (or 90 days, if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in an underwritten
public offering, or (ii) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration
Statement, which statements shall cover said twelve-month periods,
provided that the obligations shall be satisfied by the timely filing
of quarterly and annual reports on Forms 10-Q and 10-K under the
Exchange Act;
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(h) use its reasonable best efforts to cause all such
Registrable Securities to be listed on each securities exchange or
quotation system on which similar securities issued by the Company are
listed or traded;
(i) give written notice to the Holders:
(i) when such Registration Statement or any amendment
thereto has been filed with the SEC and when such Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the SEC for amendments or
supplements to such Registration Statement or for additional
information;
(iii) of the issuance by the SEC of any stop order
suspending the effectiveness of such Registration Statement or
the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension of
the qualification of the Common Stock for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the existence of any fact that results in: (A)
the Registration Statement containing an untrue statement of a
material fact or omitting to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading; and (B) the Prospectus containing an untrue
statement of a material fact or omitting to state a material
fact necessary in order to make the statements therein not
misleading (which notice shall be accompanied by an
instruction to suspend the use of the Prospectus until the
requisite changes have been made);
(j) use its reasonable best efforts to prevent the issuance or
obtain the withdrawal of any order suspending the effectiveness of such
Registration Statement at the earliest possible time;
(k) furnish to each Holder, without charge, at least one copy
of such Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits (including those, if any,
incorporated by reference);
(l) upon the occurrence of any event contemplated by Section
7(i)(v) above, promptly prepare a post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or
file any other required document so that, as thereafter delivered to
the Holders, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. If the Company notifies the Holders in accordance
with Section 7(i)(v) above to suspend the use of the Prospectus until
the requisite changes to the Prospectus have been made, then
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the Holders shall suspend use of such Prospectus and use their
reasonable best efforts to return to the Company all copies of such
Prospectus (at the Company's expense) other than permanent file copies
then in such Holder's possession, and the period of effectiveness of
such Registration Statement provided for above shall be extended by the
number of days from and including the date of the giving of such notice
to the date Holders shall have received such amended or supplemented
Prospectus pursuant to this Section 7(l);
(m) make reasonably available for inspection by
representatives of the Holders, any underwriter participating in any
disposition pursuant to such Registration Statement and any attorney,
accountant or other agent retained by such representative or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and cause the
Company's officers, directors and employees to supply all relevant
information reasonably requested by such representative or any such
underwriter, attorney, accountant or agent in connection with the
registration; and
(n) use its reasonable best efforts to procure the cooperation
of the Company's transfer agent in settling any offering or sale of
Registrable Securities, including with respect to the transfer of
physical stock certificates into book-entry form in accordance with any
procedures reasonably requested by the Holders or the underwriters.
It shall be a condition precedent to the obligation of the
Company to take any action pursuant to this Agreement in respect of the
Registrable Securities which are to be registered at the request of any Holder
that such Holder shall furnish to the Company within ten days of the Company's
request such information regarding the Registrable Securities held by such
Holder and the intended method of disposition thereof as the Company shall
reasonably request and as shall be required in connection with the action taken
by the Company.
8. Expenses. All expenses incurred in connection with each
registration pursuant to Sections 2, 3 and 4 of this Agreement, excluding
underwriters' discounts and commissions, but including without limitation all
registration, filing and qualification fees, word processing, duplicating,
printers' and accounting fees (including the expenses of any special audits or
"comfort" letters required by or incidental to such performance and compliance),
fees of the NASD or listing fees, messenger and delivery expenses, all fees and
expenses of complying with state securities or blue sky laws, fees and
disbursements of counsel for the Company and the reasonable fees and
disbursements of one counsel for the selling Holders (which counsel shall be
selected by the Holders holding a majority in interest of the Registrable
Securities being registered), shall be paid by the Company.
9. Rule 144 Information.
(a) At all times after ninety (90) days after any Registration
Statement covering securities of the Company shall have become effective, the
Company agrees to:
(i) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act; and
11
(ii) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act.
(b) At all times during which the Company is neither subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act, nor
exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, it will
provide, upon the written request of any Holder of Registrable Securities in
written form (as promptly as practicable and in any event within 15 Business
Days), to any prospective buyer of such stock designated by such Holder, all
information required by Rule 144A(d)(4)(i) of the General Regulations
promulgated by the SEC under the Securities Act.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Holder,
such Holder's directors and officers, each person who participates in the
offering of such Registrable Securities, including underwriters (as defined in
the Securities Act), and each person, if any, who controls such Holder or
participating person within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or proceedings in respect thereof) arise out of
or are based on any untrue or alleged untrue statement of any material fact
contained in such registration statement on the effective date thereof
(including any Prospectus filed under Rule 424 under the Securities Act or any
amendments or supplements thereto) or arise out of or are based upon the
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
shall reimburse each such Holder, such Holder's directors and officers, such
participating person or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable to any Holder, such Holder's directors and officers,
participating person or controlling person in any such case for any such loss,
claim, damage, liability or action to the extent that it arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in connection with such registration statement,
preliminary prospectus, final prospectus or amendments or supplements thereto,
in reliance upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Holder, such Holder's
directors and officers, participating person or controlling person. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any such Holder, such Holder's directors and officers,
participating person or controlling person, and shall survive the transfer of
such securities by such Holder.
(b) Each Holder requesting or joining in a registration
severally and not jointly shall indemnify and hold harmless the Company, each of
its directors and officers, each person, if any, who controls the Company within
the meaning of the Securities Act, and each agent and any underwriter for the
Company (within the meaning of the Securities Act) against any losses, claims,
damages or liabilities, joint or several, to which the Company or any such
director, officer, controlling person, agent or underwriter may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or proceedings
12
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in such registration
statement on the effective date thereof (including any Prospectus filed under
Rule 424 under the Securities Act or any amendments or supplements thereto) or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in such registration statement, preliminary or final
prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished by or on behalf of such Holder
expressly for use in connection with such registration; and each such Holder
shall reimburse any legal or other expenses reasonably incurred by the Company
or any such director, officer, controlling Person, agent or underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the liability of each Holder
hereunder shall be limited to the aggregate net proceeds received by such Holder
in connection with any such registration under the Securities Act.
(c) If the indemnification provided for in this Section 10
from the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding. If the allocation provided in this paragraph (c) is
not permitted by applicable law, the parties shall contribute based upon the
relevant benefits received by the Company from the initial offering of the
Registrable Securities on the one hand and the net proceeds received by the
Holders from the sale of Registrable Securities on the other.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 10(c) 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 immediately preceding
paragraph. 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.
(d) Any Person entitled to indemnification hereunder (the
"Indemnified Party") agrees to give prompt written notice to the indemnifying
party (the "Indemnifying Party") after the receipt by the Indemnified Party of
any written notice of the commencement of
13
any action, suit, proceeding or investigation or threat thereof made in writing
for which the Indemnified Party intends to claim indemnification or contribution
pursuant to this Agreement; provided that the failure so to notify the
Indemnified Party shall not relieve the Indemnifying Party of any liability that
it may have to the Indemnifying Party hereunder unless such failure is
materially prejudicial to the Indemnifying Party. If notice of commencement of
any such action is given to the Indemnifying Party as provided above, the
Indemnifying Party shall be entitled to participate in and, to the extent it may
wish, to assume the defense of such action at its own expense, with counsel
chosen by it and reasonably satisfactory to such Indemnified Party. The
Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be paid by the Indemnified Party unless (i) the Indemnifying Party
agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense
of such action, or (iii) the named parties to any such action (including any
impleaded parties) have been advised by such counsel that either (A)
representation of such Indemnified Party and the Indemnifying Party by the same
counsel would be inappropriate under applicable standards of professional
conduct or (B) there are one or more legal defenses available to it which are
substantially different from or additional to those available to the
Indemnifying Party. No Indemnifying Party shall be liable for any settlement
entered into without its written consent, which consent shall not be
unreasonably withheld.
(e) The agreements contained in this Section 10 shall survive
the transfer of the Registration Statement and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
such director, officer or participating or controlling Person.
11. Certain Additional Limitations on Registration Rights.
Notwithstanding the other provisions of this Agreement, the Company shall not be
obligated to register the Registrable Securities of any Holder (i) if such
Holder or any underwriter of such Registrable Securities shall fail to furnish
to the Company necessary information in respect of the distribution of such
Registrable Securities, or (ii) if such registration involves an underwritten
offering, such Registrable Securities are not included in such underwritten
offering on the same terms and conditions as shall be applicable to the other
securities being sold through underwriters in the registration or such Holder
fails to enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwritten offering.
12. Limitations on Registration of Other Securities;
Representation. From and after the date of this Agreement, the Company shall
not, without the prior written consent of a majority-in-interest of the Holders,
enter into any agreement with any holder or prospective holder of any securities
of the Company giving such holder or prospective holder any registration rights
the terms of which are as or more favorable taken as a whole than the
registration rights granted to the Holders hereunder unless the Company shall
also give such rights to the Holders hereunder.
13. No Inconsistent Agreements. The Company will not hereafter
enter into any agreement, with respect to its securities, which is inconsistent
in any material respects with the rights granted to the Holders in this
Agreement.
14
14. Selection of Managing Underwriters. In the event the
Participating Demand Holders have requested an underwritten offering, the
underwriter or underwriters shall be selected by the Holders of a majority of
the Registrable Securities proposed to be sold in such Demand Registration and
shall be approved by the Company, which approval shall not be unreasonably
withheld or delayed, provided (i) that all of the representations and warranties
by, and the other agreements on the part of, the Company to and for the benefit
of such underwriters shall also be made to and for the benefit of such Holders
of Registrable Securities, (ii) that any or all of the conditions precedent to
the obligations of such underwriters under such underwriting agreement shall be
conditions precedent to the obligations of such Holders of Registrable
Securities, and (iii) that no Holder shall be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
Holder, the Registrable Securities of such Holder and such Holder's intended
method of distribution and any other representations required by law or
reasonably required by the lead underwriter. Subject to the foregoing, all
Holders proposing to distribute Registrable Securities through such underwritten
offering shall enter into an underwriting agreement in customary form with the
underwriter or underwriters. Subject to the provisions of Section 9(b), if any
Holder of Registrable Securities disapproves of the terms of the underwriting,
such Holder may elect to withdraw all its Registrable Securities by written
notice to the Company, the managing underwriter and the other Holders
participating in such registration. The securities so withdrawn shall also be
withdrawn from registration.
15. Miscellaneous.
(a) Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of the Agreement was
not performed in accordance with the terms hereof and that the parties hereto
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or in equity.
(b) Amendments; Waivers. (i) This Agreement may be amended,
modified or supplemented by a written instrument signed by the Company and a
majority in interest of the New Holders; provided, however, that no amendment,
modification or supplement may materially and adversely affect any other Holder
without such Holder's written consent. The Company shall notify all Holders
promptly after any such amendment, modification or supplement shall have taken
effect.
(ii) No failure or delay by any party in exercising any right,
power or privilege hereunder (other than a failure or delay beyond a period of
time specified herein) shall operate as a waiver thereof and no single or
partial exercise thereof shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.
(c) Notice Generally. All notices, request, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
courier service, by fax or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses:
15
(i) If to any Holder, at its last known address appearing on
the books of the Company maintained for such purpose.
(ii) If to the Company, at:
Aegis Communications Group, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxx, LLP
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided.
(d) Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto as hereinafter provided. The
registration rights of any Holder with respect to any Registrable Securities
shall be transferred to any Person who is the transferee of such Registrable
Securities. All of the obligations of the Company hereunder shall survive any
such transfer. Except as provided in Sections 3, 4 and 10, no Person other than
the parties hereto and their successors and permitted assigns is intended to be
a beneficiary of this Agreement.
(e) Headings. The headings and subheadings in this Agreement
are included for convenience and identification only and are in no way intended
to describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
(f) Governing Law; Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
(i) Any claim, action, suit or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby
may be heard and determined in any New York state or federal court
sitting in The City of New York, County of Manhattan, and each of the
parties hereto hereby consents to the exclusive jurisdiction of such
courts (and of the appropriate appellate courts therefrom in any such
claim, action, suit or proceeding) and irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of venue of any such claim, action, suit
or proceeding in any such court or that any such claim, action, suit or
proceeding that is brought in any such court has been brought in an
inconvenient forum.
16
(ii) Subject to applicable law, process in any such claim,
action, suit or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court.
Without limiting the foregoing and subject to applicable law, each
party agrees that service of process on such party as provided in
Section 15(c) shall be deemed effective service of process on such
party. Nothing herein shall affect the right of any party to serve
legal process in any other manner permitted by law or at equity. WITH
RESPECT TO ANY SUCH CLAIM, ACTION, SUIT OR PROCEEDING IN ANY SUCH
COURT, EACH OF THE PARTIES IRREVOCABLY WAIVES AND RELEASES TO THE OTHER
ITS RIGHT TO A TRIAL BY JURY, AND AGREES THAT IT WILL NOT SEEK A TRIAL
BY JURY IN ANY SUCH PROCEEDING.
(g) Severability. If, at any time, any provision hereof is or
becomes illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions hereof nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or impaired
thereby.
(h) Entire Agreement. This Agreement, the Purchase Agreement,
the Notes and the Warrants constitute the entire agreement among the parties
hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
(i) Cumulative Remedies. The rights and remedies provided by
this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive its right to use any or all other remedies.
Such rights and remedies are given in addition to any other rights the parties
may have by law, statute, ordinance or otherwise.
(j) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE APPEARS ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
AEGIS COMMUNICATIONS GROUP, INC.
By: /s/ XXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
DEUTSCHE BANK AG - LONDON,
BY DB ADVISORS, LLC AS INVESTMENT
ADVISOR
By: /s/ XXXXX XXXXXXXXX
------------------------------------
Name: Xxxxx XxxXxxxxx
Title: Director
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
ESSAR GLOBAL LIMITED
By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Director
18
QUESTOR:
QUESTOR PARTNERS FUND II, L.P.
By: /s/ XXXX XXXXXXXX
----------------------------------------
Name: Questor General Partner II, L.P.,
its General Partner
Title: Managing Director
By: /s/ XXXX XXXXXXXX
----------------------------------------
Name: Questor Principals II, Inc.,
its General Partner
Title: Managing Director
QUESTOR SIDE-BY-SIDE
PARTNERS II, L.P.
By: /s/ XXXX XXXXXXXX
----------------------------------------
Name: Questor Principals II, Inc.
Title: Managing Director
QUESTOR SIDE-BY-SIDE
PARTNERS II 3(C)(1), L.P.
By: /s/ XXXX XXXXXXXX
----------------------------------------
Name: Questor Principals II, Inc.
Title: Managing Director
19
TC CO-INVESTORS, LLC
By: /s/ XXXXXXXXXXX X. XXXXXX
-----------------------------------
Name: TC Management Partners, LLC
a Delaware limited liability
company, its General Partner
Title: An Authorized Officer
Name: Xxxxxxxxxxx X. Xxxxxx
XXXXXX EQUITY INVESTORS III, L.P.
By: /s/ XXXXXXXXXXX X. XXXXXX
-----------------------------------
Name: TC Equity Partners, LLC
a Delaware limited liability
company, its General Partner
Title: An Authorized Officer
Name: Xxxxxxxxxxx X. Xxxxxx
20
XXXXXX XXXXX
By: /s/ XXXXXX XXXXX
------------------------
Name: Xxxxxx Xxxxx
THE XXXXXX XXXXX 1995 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ XXXXX X. XXXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Trustee
21
