AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Dated as of April 16, 2001
among
OUTSOURCING SOLUTIONS INC.,
a Delaware corporation,
the Purchasers named herein
AND
certain other parties hereto
Relating to Certain Shares of Common Stock, $0.01 Par Value
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the "Agreement")
is made and entered into as of April 16, 2001, among Outsourcing Solutions Inc.,
a Delaware corporation (the "Company"), Madison Dearborn Capital Partners III,
L.P. ("MDCP"), Madison Dearborn Special Equity III, L.P. ("MDSE") and Special
Advisers Fund I, L.L.C. ("SAF" and collectively with MDCP and MDSE, the "Equity
Investor") and Ares Leveraged Investment Fund, L.P., Ares Leveraged Investment
Fund II, L.P., DB Capital Investors, L.P., First Union Merchant Bank 1999,
L.L.C., First Union Capital Partners 2001, L.L.C., Xxxxxx Capital 1330 Investors
II, L.P., Xxxxxx Capital Private Equity Fund III, L.P., BNY Partners Fund,
L.L.C., Xxxxxx Financial, Inc., Magnetite Asset Investors L.L.C., FBR Financial
Fund II, L.P., Harvest Opportunity Partners, L.P., Gryphon Partners II, L.P.
("GPII") and Gryphon Partners II-A, L.P. ("GPII-A") (each a "Purchaser" and,
collectively, the "Purchasers").
The Company and certain of the Purchasers (or their Affiliates), excluding
GPII and GPII-A, previously entered into a Registration Rights Agreement, dated
December 10, 1999 (relating to 5,920,474.15 shares of Common Stock), pursuant to
that certain Purchase Agreement, dated as of December 10, 1999 (the "Original
Agreement"), among the Company and certain of the Purchasers (the "Purchase
Agreement"), relating to the sale by the Company to certain of the Purchasers of
an aggregate of (i) 25,000 shares of the Company's Class A 14% Senior
Mandatorily Redeemable Preferred Stock (the "Class A Senior Preferred Stock"),
(ii) 75,000 shares of the Company's Class B 14% Senior Mandatorily Redeemable
Preferred Stock (the "Class B Senior Preferred Stock", and together with the
Class A Senior Preferred Stock, the "Senior Preferred Stock") and (iii)
596,913.07 shares of the Company's Common Stock (as defined herein) (such shares
of Common Stock, together with the Senior Preferred Stock, the "Purchased
Securities").
The Company, GPII, GPII-A and certain other Purchasers are parties to a
Stock Subscription Agreement, dated as of April 3, 2001 (the "Subscription
Agreement"), wherein, inter alia, GPII and GPII-A are each acquiring certain,
and may acquire certain additional, shares of the Company's Senior Common Stock,
par value $0.01 per share (the "Senior Common Stock") (such shares of Senior
Common Stock, the "Subscription Shares").
In order to induce GPII and GPII-A to enter into the Subscription Agreement
and purchase the Subscription Shares, the Company has agreed to provide to GPII
and GPII-A the registration rights and other rights for the Registrable
Securities (as defined herein) set forth in this Agreement. The execution of
this Agreement is a condition to the obligations of GPII and GPII-A to purchase
the Subscription Shares under the Subscription Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning ascribed to that term in the last paragraph
of Section 4.
"Affiliate" means, with respect to any specified Person: (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person; (ii) any other Person that
owns, directly or indirectly, 10% or more of such specified Person's Capital
Stock; or (iii) any other Person 10% or more of the Voting Stock of which is
beneficially owned or held directly or indirectly by such specified Person. For
the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing. With respect to each Purchaser, an
Affiliate shall also include, without limitation, any Person managed by, or
controlling or under common control with such Purchaser or any of its
Affiliates. Notwithstanding anything to the contrary contained herein, (x) no
portfolio company of MDCP nor any portfolio company of a fund managed by or
affiliated with MDCP shall be deemed an Affiliate of the Company and (y) no
Purchaser or any of their respective Affiliates shall be deemed an Affiliate of
the Company.
"Agreement" shall have the meaning ascribed to that term in the preamble
hereto.
"Black Out Period" shall have the meaning ascribed to that term in Section
2.1.
"Board of Directors" shall mean the Board of Directors of the Company or
any authorized committee of such Board of Directors.
"Business Day" shall mean a day that is not a Legal Holiday.
"Capital Stock" shall mean, (i) with respect to any Person that is a
corporation, corporate stock, (ii) with respect to any association or business
entity, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of common stock and preferred stock of such Person; (iii) with
respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person; and (iv) any rights,
warrants or options exchangeable for or convertible into any of the foregoing.
"Certificate of Designation" shall mean the Certificate of Designation for
the Senior Preferred Stock.
"Change of Control" shall have the meaning ascribed to that term in the
Certificate of Designation.
"Class A Senior Preferred Stock" shall have the meaning ascribed to that
term in the preamble hereto.
"Class B Senior Preferred Stock" shall have the meaning ascribed to that
term in the preamble hereto.
"Common Stock" shall mean the Company's $0.01 par value common stock of any
class, including the Voting Common Stock, Non-Voting Common Stock and Senior
Common Stock.
"Company" shall have the meaning ascribed to that term in the preamble
hereto and shall also include the Company's successors.
"Demand" shall have the meaning ascribed to that term in Section 2.1.
"Demand Registration" shall have the meaning ascribed to that term in
Section 2.1.
"Effectiveness Period" shall have the meaning ascribed to that term in
Section 2.1.
"Equity Investor" shall have the meaning ascribed to that term in the
preamble.
"Equity Investor Shares" shall mean (a) the Common Stock held by the Equity
Investor or its designees or issued or issuable to the Equity Investor upon
conversion of the Senior Common Stock (including all Common Stock purchased
pursuant to the Recapitalization Agreement or issued or issuable to the Equity
Investor or its designees upon conversion of the Senior Common Stock purchased
pursuant to the Subscription Agreement), whether held by any of them or any
subsequent assignee or transferee and (b) any other securities issued or
issuable with respect to or in exchange for such Common Stock or Senior Common
Stock by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Holder" shall mean each of the Purchasers and the Equity Investor, for so
long as the Purchasers or the Equity Investor own any Registrable Securities,
and their respective successors, assigns and direct and indirect transferees who
become registered owners of Registrable Securities.
"Initial Public Equity Offering" means a primary underwritten public
offering (but excluding any offering pursuant to Form S-8 under the Securities
Act or any other publicly registered offering pursuant to the Securities Act
pertaining to an issuance of shares of Common Stock or securities exercisable
therefor under any benefit plan, employee compensation plan, or employee or
director stock purchase plan) of Common Stock of the Company pursuant to an
effective registration statement under the Securities Act.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which banking
institutions in The City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed.
"Lock Up Period" shall have the meaning ascribed to that term in Section
2.1.
"MDCP" shall have the meaning ascribed to that term in the preamble hereto.
"MDSE" shall have the meaning ascribed to that term in the preamble hereto.
"Person" shall mean an individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or agency or political subdivision
thereof.
"Postponement Period" shall have the meaning ascribed to that term in
Section 2.1.
"Preferred Stock" means, with respect to any Person, Capital Stock of any
class or classes (however designated) of such Person which is preferred as to
the payment of dividends or distributions, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over Capital Stock of any other class of such Person. With respect to the
Company, the term "Preferred Stock" shall include the Senior Preferred Stock.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Registrable Securities covered
by such Registration Statement, and all other amendments and supplements to any
such prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such prospectus.
"Purchase Agreement" shall have the meaning ascribed to that term in the
preamble hereto.
"Purchased Securities" shall have the meaning ascribed to that term in the
preamble hereto.
"Purchasers" shall have the meaning ascribed to that term in the preamble
hereto.
"Purchaser Holder" shall mean each of the Purchasers, for so long as the
Purchasers own any Registrable Securities, and their successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities.
"Qualifying IPO" shall mean an Initial Public Equity Offering generating
aggregate gross proceeds to the Company of at least $50.0 million.
"Recapitalization Agreement" means that certain Stock Subscription and
Redemption Agreement, dated as of October 8, 1999, by and among MDCP and the
other parties thereto, as may be amended from time to time.
"Registrable Securities" shall mean any of (i) the Shares or (ii) the
Equity Investor Shares. As to any particular Registrable Securities, once issued
such securities shall cease to be Registrable Securities when (a) a Registration
Statement with respect to the sale of such securities by the Holder thereof
shall have been declared effective under the Securities Act and such securities
shall have been disposed of by such Holder in accordance with such Registration
Statement, (b) such securities have been distributed to the public pursuant to
Rule 144 (or any successor provision) promulgated under the Securities Act, (c)
such securities shall have been otherwise transferred and new certificates for
them not bearing a legend restricting further transfer shall have been delivered
by the Company and subsequent disposition of such securities shall not require
registration or qualification under the Securities Act or any similar state law
then in force or (d) such securities shall have ceased to be outstanding.
"Registration Expenses" shall mean all expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
all SEC and stock exchange or National Association of Securities Dealers, Inc.
registration and filing fees and expenses, fees and expenses of compliance with
securities or Blue Sky laws (including, without limitation, in the event of an
underwritten offering, reasonable fees and disbursements of counsel for the
underwriters in connection with Blue Sky qualifications, if any, of the
Registrable Securities), rating agency fees, printing expenses, messenger,
telephone and delivery expenses, fees and disbursements of counsel for the
Company and all independent certified public accountants, and, in the event of
an underwritten offering, the fees and disbursements of underwriters customarily
paid by issuers or sellers of securities (but not including (i) any underwriting
discounts or commissions or transfer taxes, if any, attributable to the sale of
Registrable Securities by Holders of such Registrable Securities or (ii) fees
and expenses of counsel and/or experts for the Holders).
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Requisite Shares" shall mean a number of Registrable Securities equivalent
to not less than 30% of the Registrable Securities (excluding Registrable
Securities which are Equity Investor Shares) outstanding as of any date of
determination.
"Rule 144" shall mean Rule 144 under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A" shall mean Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"SAF" shall have the meaning ascribed in the preamble hereto.
"SEC" shall mean the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this Agreement such Commission is not existing and performing the
duties now assigned to it under the Exchange Act, the body performing such
duties at such time.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Senior Common Stock" shall have the meaning ascribed to that term in the
preamble hereto.
"Senior Preferred Stock" shall have the meaning ascribed to that term in
the preamble hereto.
"Shares" shall mean (a) the Common Stock held by, or issued or issuable
upon conversion of the Senior Common Stock to, the Purchasers (including all
Purchased Securities and all other Common Stock sold to certain of the
Purchasers pursuant to the Assignment and Stock Purchase Agreement dated as
December 10, 1999 and all Subscription Shares), whether held by any of them or
any subsequent assignee or transferee and (b) any other securities issued or
issuable with respect to or in exchange for such Common Stock by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
For purposes of this Agreement, any Purchaser who holds Senior Common Stock
shall be deemed to be the holder of the Shares issuable directly or indirectly
upon exercise or conversion of such Senior Common Stock in connection with the
transfer thereof or otherwise and regardless of any restriction or limitation on
the exercise or conversion thereof.
"Stockholders Agreement" shall mean the Amended and Restated Stockholders
Agreement dated the date hereof by and among the Company, the Equity Investor,
certain stockholders, optionholders and warrantholders and the Purchasers.
"Subscription Agreement" shall have the meaning ascribed to that term in
the preamble hereto.
"Subscription Shares" shall have the meaning ascribed to that term in the
preamble hereto.
"Voting Stock" shall mean any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the Board of Directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
2. Registration Rights and Other Rights of the Holders.
2.1 Demand Registration.
(a) Request for Registration. At any time (i) the Equity Investor may make
an unlimited number of written requests (each a "Demand") for registration under
the Securities Act of its Registrable Securities (a "Demand Registration"), (ii)
on or after December 10, 2002, Purchasers owning, individually or in the
aggregate, at least the Requisite Shares may make up to two Demands for a Demand
Registration and (iii) after an Initial Public Equity Offering, GPII and GPII-A,
collectively, may make one Demand if GPII and GPII-A have collectively purchased
$20,000,000 in Senior Common Stock pursuant to the Subscription Agreement and
may make one additional Demand if GPII and GPII-A have collectively purchased
$40,000,000 in Senior Common Stock pursuant to the Subscription Agreement. Any
such Demand will specify the number of Registrable Securities proposed to be
sold and will also specify the intended method of disposition thereof. Subject
to the other provisions of this Section 2.1, the Company shall give written
notice of such Demand within 10 days after the receipt thereof to all other
Holders. Within 30 days after receipt of such notice by any Holder, such Holder
may request in writing that its Registrable Securities be included in such
registration, and the Company shall include in the Demand Registration the
Registrable Securities of any such selling Holder requested to be so included.
Each such request by such other selling Holders shall specify the number of
Registrable Securities proposed to be sold and the intended method of
disposition thereof. Upon a Demand, the Company will (y) prepare, file and use
its commercially reasonable efforts to cause to become effective within 90 days
of such Demand a Registration Statement in respect of all the Registrable
Securities which Holders request for inclusion therein; provided that if such
Demand occurs during a Black Out Period or a period (not to exceed 180 days)
during which the Company is prohibited or restricted from issuing or selling
Common Stock pursuant to any underwriting or purchase agreement relating to an
underwritten public offering of Common Stock or securities convertible into or
exchangeable for Common Stock under Rule 144A or registered under the Securities
Act or any agreement with a securityholder of the Company exercising
registration rights (a "Lock Up Period"), the Company shall not be required to
notify the Holders of such Demand or file such Registration Statement prior to
the end of the Black Out Period or Lock Up Period, as the case may be, in which
event, the Company will use its commercially reasonable efforts to cause such
Registration Statement to become effective no later than 90 days after the end
of the Black Out Period or Lock Up Period, as the case may be, and (z) keep such
Registration Statement effective for the shorter of (a) 180 days (the
"Effectiveness Period") and (b) such period of time as all of the Registrable
Securities included in such Registration Statement have been sold thereunder.
Notwithstanding anything set forth in the immediately preceding sentence, the
Company may (I) postpone the filing period, suspend the effectiveness of any
registration, suspend the use of any Prospectus and shall not be required to
amend or supplement the Registration Statement, any related Prospectus or any
document incorporated therein by reference (other than an effective registration
statement being used for an underwritten offering) in the event that, and for a
period, in the case of any particular Demand Registration, not to exceed an
aggregate of 90 days ("Black Out Period") if (i) an event or circumstance occurs
as a result of which the Registration Statement, any related Prospectus or any
document incorporated therein by reference as then amended or supplemented
would, in the Company's good faith judgment, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and (ii) the Company determines in its good faith judgment
that (A) the disclosure of such event at such time would have a material adverse
effect on the business, operations or prospects of the Company or (B) the
disclosure otherwise relates to a material business transaction or any other
material matter, which has not yet been publicly disclosed; provided, further,
that, if the effectiveness of any Registration Statement is suspended as a
result of a Black Out Period, the Effectiveness Period shall be extended by the
number of days in any Black Out Period and (II) at any time prior to an Initial
Public Equity Offering by the Company, postpone the filing of one Demand
Registration, by giving written notice thereof to all Holders, for a period not
to exceed an aggregate of 180 days ("Postponement Period"); provided, that at
the end of the Postponement Period the Company will use its commercially
reasonable efforts to cause a Registration Statement with respect to all
Registrable Securities of Holders electing to participate in such Demand
Registration to become effective within 90 days after the end of the
Postponement Period.
In the event of the occurrence of any Black Out Period during an
Effectiveness Period or Lock Up Period, the Company will promptly notify the
Holders of Registrable Securities thereof in writing.
(b) Effective Registration. Except as specifically provided herein, the
Company is only required to effect two Demand Registrations under Section
2.1(a)(ii) and up to two Demand Registrations under 2.1(a)(iii) of this
Agreement (whether or not all of the Holders of Registrable Securities elect to
participate in such Demand Registration on the basis set forth herein). A
registration will not be deemed to have been effected as a Demand Registration,
and thereby satisfy the obligation hereunder, unless it has been declared
effective by the SEC and the Company has complied in all material respects with
its obligations under this Agreement with respect thereto; provided that if,
after it has become effective, the offering of Registrable Securities pursuant
to such registration is or becomes the subject of any stop order, injunction or
other order or requirement of the SEC or any other governmental or
administrative agency, or if any court prevents or otherwise limits the sale of
Registrable Securities pursuant to the registration (for any reason other than
the act or omissions of the Holders) for the period of time contemplated hereby,
such registration will be deemed not to have been effected. If (i) a
registration requested pursuant to Section 2.1(a)(ii) or 2.1(a)(iii) is deemed
not to have been effected or (ii) the registration requested pursuant to Section
2.1(a)(ii) or 2.1(a)(iii) does not remain effective for the Effectiveness
Period, then the Company shall not be deemed to have effected a Demand
Registration and its obligations pursuant to Section 2.1(a)(ii) or 2.1(a)(iii)
will continue. The Holders of Registrable Securities shall be permitted to
withdraw all or any part of the Registrable Securities from a Demand
Registration at any time prior to the effective date of such Demand
Registration. If at any time a Registration Statement is filed pursuant to a
Demand Registration under Section 2.1(a)(ii) or 2.1(a)(iii), and subsequently a
sufficient number of the Registrable Securities are withdrawn from the Demand
Registration so that such Registration Statement does not cover that number of
Registrable Securities at least equal to one-half of the Registrable Securities
of the Purchaser Holders outstanding as of such date, the Holders who have not
withdrawn their Registrable Securities shall have the opportunity to include an
additional number of Registrable Securities in the Demand Registration so that
such Registration Statement covers that number of Registrable Securities at
least equal to one-half of the Registrable Securities of the Purchaser Holders
outstanding as of such date. If an additional number of Registrable Securities
is not so included, the Company may withdraw the Registration Statement. Such
withdrawn Registration Statement will not count as a Demand Registration and the
Company shall continue to be obligated to effect such registration pursuant to
Section 2.1(a)(ii) or 2.1(a)(iii).
(c) Priority in Demand Registrations Pursuant to Section 2.1. If a Demand
Registration pursuant to this Section 2.1 involves an underwritten offering and
the lead managing underwriter advises the Company in writing that, in its view,
the number of Registrable Securities requested by the Holders to be included in
such registration together with any other securities permitted to be included in
such registration, exceeds the number which, in the view of such lead managing
underwriter, can be sold, the number of such Registrable Securities to be
included in such registration shall be allocated pro rata among all requesting
Holders on the basis of the relative number of Registrable Securities then held
by each such Holder (provided that any Registrable Securities thereby allocated
to any such Holder that exceed such Holder's request shall be reallocated among
the remaining requesting Holders in like manner). In the event that the number
of Registrable Securities requested to be included in such registration is less
than the number which, in the view of the lead managing underwriter, can be
sold, the Company may include in such registration the securities the Company
proposes to sell up to the number of securities that, in the view of the lead
managing underwriter, can be sold without adversely affecting the success of the
offering, including the price at which the Registrable Securities can be sold.
(d) Selection of Underwriter. If the Holders so elect, the offering of
Registrable Securities pursuant to a Demand Registration shall be in the form of
an underwritten offering. The Holders of a majority of Registrable Securities to
be sold in such Demand Registration shall select one or more nationally
recognized firms of investment bankers (to whom the Company shall not have
reasonably objected) to act as the managing underwriter or underwriters in
connection with such offering and shall select any additional investment bankers
and managers to be used in connection with the offering.
(e) Expenses. The Company will pay all Registration Expenses in connection
with the registrations requested pursuant to Section 2.1(a). Each Holder shall
pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to any registration statement requested pursuant to this Section 2.1.
3. [Intentionally Omitted]
4. Registration Procedures. In connection with the obligations of the
Company with respect to any Registration Statement pursuant to Section 2.1
hereof and pursuant to Section 6 of the Stockholders Agreement, the Company
shall:
(a) Within a reasonable period of time prior to the initial filing of a
Registration Statement or Prospectus and a reasonable period of time prior to
the filing of any amendment or supplement thereto, furnish to the Holders of the
Registrable Securities included in such Registration Statement, and the managing
underwriters, if any, copies of all such documents proposed to be filed, which
documents (other than those incorporated or deemed to be incorporated by
reference) will be subject to the review of such Holders, and such underwriters,
if any, and use reasonable commercial efforts to cause the officers and
directors of the Company, counsel to the Company and independent certified
public accountants to the Company to respond to such reasonable inquiries as
shall be necessary, in the opinion of the respective counsel to such Holders and
such underwriters, to conduct a reasonable investigation within the meaning of
the Securities Act. The Company shall not file any such Registration Statement
or related Prospectus or any amendments or supplements thereto to which the
Holders of a majority of the Registrable Securities included in such
Registration Statement shall reasonably object on a timely basis;
(b) Prepare and file with the SEC such amendments, including post-effective
amendments, to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable time period
required hereunder; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act with 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 as so amended or in such Prospectus as so
supplemented;
(c) Notify the Holders of Registrable Securities to be sold and the
managing underwriters, if any, promptly, and (if requested by any such Person),
confirm such notice in writing, (i)(A) when a Prospectus or any Prospectus
supplement or post-effective amendment is proposed to be filed and (B) with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the SEC or any other Federal
or state governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of the
issuance by the SEC, any state securities commission, any other governmental
agency or any court of any stop order, order or injunction suspending or
enjoining the use of a Prospectus or the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, and (v) of the happening of any event or
information becoming known that makes any statement made in a Registration
Statement or related Prospectus untrue in any material respect or that requires
the making of any changes in such Registration Statement or Prospectus so that,
in the case of a Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and that in the case
of a Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading;
(d) Use its commercially reasonable efforts to avoid the issuance of or, if
issued, obtain the withdrawal of any order enjoining or suspending the use of a
Prospectus or the effectiveness of a Registration Statement or the lifting of
any suspension of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction described in Section
4(h), at the earliest practicable moment;
(e) If requested by the lead managing underwriters, if any, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, reasonably believe should be
included therein, and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment under the Securities Act as soon as
practicable after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
provided, however, that the Company shall not be required to take any action
pursuant to this Section 4(e) that would, in the opinion of counsel for the
Company, violate applicable law;
(f) Upon written request to the Company, furnish to each Holder of
Registrable Securities to be sold pursuant to a Registration Statement and each
managing underwriter, if any, without charge, at least one conformed copy of
such Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference, and all exhibits to the extent requested
(including those previously furnished or incorporated by reference) as soon as
practicable after the filing of such documents with the SEC;
(g) Deliver to each Holder of Registrable Securities to be sold pursuant to
a Registration Statement, and the underwriters, if any, without charge, as many
copies of the Prospectus (including each form of prospectus) and each amendment
or supplement thereto as such persons reasonably request; and the Company hereby
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders of Registrable Securities and the underwriters,
if any, in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto;
(h) Prior to any public offering of Registrable Securities, use its
commercially reasonable efforts to register or qualify or cooperate with the
Holders of Registrable Securities to be sold, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as any such Holder or underwriter reasonably requests in writing;
keep each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
hereunder and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; provided, however, that the
Company shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action which
would subject it to general service of process or to taxation in any
jurisdiction where they are not so subject;
(i) In connection with any sale or transfer of Registrable Securities that
will result in such Securities no longer being Registrable Securities, cooperate
with the Holders thereof and the managing underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository Trust Company,
and to enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or such Holders
may request at least two Business Days prior to any sale of Registrable
Securities;
(j) Upon the occurrence of any event contemplated by Section 4(c)(v), as
promptly as practicable, prepare a supplement or amendment, including, if
appropriate, a post-effective amendment, to each Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(k) Enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings) and take
all such other reasonable actions in connection therewith (including those
reasonably requested by the managing underwriters, if any) in order to expedite
or facilitate the disposition of such Registrable Securities, and, whether or
not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration: (i) make such representations and
warranties to the underwriters and selling Holders, if any, with respect to the
business of the Company and its subsidiaries (including with respect to
businesses or assets acquired or to be acquired by any of them), and the
Registration Statement, Prospectus and documents, if any, incorporated or deemed
to be incorporated by reference therein, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested; (ii) obtain opinions of
counsel to the Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters if any, addressed to each of the underwriters, and selling Holders,
if any), covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
such underwriters or selling Holders; (iii) use their commercially reasonable
efforts to obtain customary "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data is, or is required to be, included in the Registration
Statement), addressed (where reasonably possible) to each of the underwriters
and selling Holders, if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings; (iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and procedures no less
favorable to the underwriters, if any, than those set forth in Section 5 hereof
(or such other provisions and procedures acceptable to the managing
underwriters, if any); and (v) deliver such documents and certificates as may be
reasonably requested by the managing underwriters, if any, to evidence the
continued validity of the representations and warranties made pursuant to clause
(i) above and to evidence compliance with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Company;
(l) Make available for inspection by a representative of any underwriter
participating in any such disposition of Registrable Securities, and any
attorney, consultant or accountant retained by such selling Holders or
underwriter, at the offices where normally kept, during reasonable business
hours, all pertinent financial and other records, corporate documents and
properties of the Company and its subsidiaries (including with respect to
businesses and assets acquired or to be acquired to the extent that such
information is available to the Company), and cause the officers, directors,
agents and employees of the Company and its subsidiaries (including with respect
to businesses and assets acquired or to be acquired to the extent that such
information is available to the Company) to supply all information in each case
reasonably requested by any such representative, underwriter, attorney,
consultant or accountant in connection with such Registration Statement;
provided, however, that such Persons shall first agree in writing with the
Company that any information that is reasonably and in good faith designated by
the Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such Persons, unless (i) disclosure of
such information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant
to Federal securities laws in connection with the filing of the Registration
Statement or the use of any Prospectus), (iii) such information becomes
generally available to the public other than as a result of a disclosure or
failure to safeguard such information by such Person or (iv) such information
becomes available to such Person from a source other than the Company and its
subsidiaries and such source is not bound by a confidentiality agreement;
(m) Comply with all applicable rules and regulations of the SEC and make
generally available to their securityholders earnings statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 under the
Securities Act, no later than 45 days after the end of any 12-month period (or
90 days after the end of any 12-month period 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 a firm commitment or reasonable efforts underwritten
offering and (ii) if not sold to underwriters in such an offering, commencing on
the first day of the first fiscal quarter after the effective date of a
Registration Statement, which statement shall cover said period, consistent with
the requirements of Rule 158 under the Securities Act; and
(n) Cooperate with each seller of Registrable Securities covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc.
The Company may require a Holder of Registrable Securities to be included
in a Registration Statement to furnish to the Company such information regarding
(i) the intended method of distribution of such Registrable Securities, (ii)
such Holder and (iii) the Registrable Securities held by such Holder as is
required by law to be disclosed in such Registration Statement, and the Company
may exclude from such Registration Statement the Registrable Securities of any
Holder who unreasonably fails to furnish such information within a reasonable
time after receiving such request. The Company shall not be required to provide
indemnification to any underwriter or any other person relating to information
referred to in clauses (i) and (ii) provided to the Company in writing
specifically for inclusion in such Registration Statement.
If any such Registration Statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Company, or (ii) in the event
that such reference to such Holder by name or otherwise is not required by the
Securities Act, the deletion of the reference to such Holder in any amendment or
supplement to the Registration Statement filed or prepared subsequent to the
time that such reference ceases to be required.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(c)(ii), 4(c)(iii),
4(c)(iv) or 4(c)(v) hereof, such Holder will forthwith discontinue disposition
of such Registrable Securities covered by such Registration Statement or
Prospectus until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(j) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. If the Company shall give any such
notice, the Effectiveness Period shall be extended by the number of days during
such period from and including the date of the giving of such notice to and
including the date when each Holder of Registrable Securities covered by such
Registration Statement shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 4(j) hereof or (y) the Advice, and,
in either case, has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
Prospectus.
5. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Holder, each
underwriter who participates in an offering of Registrable Securities, their
respective Affiliates, each Person, if any, who controls any of such parties
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and each of their respective directors, officers, employees and
agents, as follows:
(i) from and against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement (or any amendment thereto), covering
Registrable Securities, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) from and against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation (other than amounts
the Holders agree to pay in any written settlement agreement), or any
investigation or proceeding by any court or governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the prior written consent of
the Company; and
(iii) from and against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of one counsel chosen by the
Holders or any underwriter (except to the extent otherwise expressly
provided in Section 5(c) hereof)), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any court or governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under subparagraph (i) or (ii) of this
Section 5(a);
provided that this indemnity does not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or omission
or alleged untrue statement or omission (i) made in reliance upon and in
conformity with written information furnished to the Company by a Holder or any
underwriter in writing expressly for use in the Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto) or
(ii) contained in any preliminary prospectus if such Holder or such underwriter
failed to send or deliver a copy of the Prospectus (in the form it was first
provided to such parties for confirmation of sales) to the Person asserting such
losses, claims, damages or liabilities on or prior to the delivery of written
confirmation of any sale of securities covered thereby to such Person in any
case where such delivery is required by the Securities Act and such Prospectus
would have corrected such untrue statement or omission. Any amounts advanced by
the Company to an indemnified party pursuant to this Section 5 as a result of
such losses shall be returned to the Company if it shall be finally determined
by such a court in a judgment not subject to appeal or final review that such
indemnified party was not entitled to indemnification by the Company.
(b) By accepting the benefits of this Agreement, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, each
underwriter who participates in an offering of Registrable Securities and the
other selling Holders and each of their respective directors, officers
(including each officer of the Company who signed the Registration Statement),
employees and agents and each Person, if any, who controls the Company, any
underwriter or any other selling Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
loss, liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 5(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such selling Holder expressly for use in
the Registration Statement (or any amendment thereto), or any such Prospectus
(or any amendment or supplement thereto). Notwithstanding the provisions of this
Section 5(b), a Holder of Registrable Securities shall not be required to pay
any indemnification in an amount in excess of the net proceeds received by such
Holder in the offering to which such Registration Statement relates.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, enclosing a copy of all papers properly served on such
indemnified party, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability which it may have other than
on account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action. If an indemnifying party so
elects within a reasonable time after receipt of such notice, such indemnifying
party, jointly with any other indemnifying party, may assume the defense of such
action with counsel chosen thereby and approved by the indemnified parties
defendant in such action; provided that if any such indemnified party reasonably
determines, based on advice of counsel, that there may be legal defenses
available to such indemnified party which are different from or in addition to
those available to such indemnifying party or that representation of such
indemnifying party and any indemnified party by the same counsel would present a
conflict of interest, then such indemnifying party or parties shall not be
entitled to assume such defense. If an indemnifying party is not entitled to
assume the defense of such action as a result of the proviso to the preceding
sentence, counsel for such indemnifying party shall be entitled to conduct the
defense of such indemnifying party and counsel for each indemnified party or
parties shall be entitled to conduct the defense of such indemnified party or
parties at the expense of the indemnifying party. If an indemnifying party
assumes the defense of an action in accordance with and as permitted by the
provisions of this paragraph, such indemnifying party shall not be liable for
any fees and expenses of counsel for the indemnified parties incurred thereafter
in connection with such action. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel), separate from its own counsel, for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(d) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 5 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company and the Holders
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company and the Holders, as incurred; provided that notwithstanding the
provisions of this Section 5(d), a Holder of Registrable Securities shall not be
required to contribute any amount in excess of the amount by which the net
proceeds received by such Holder in the offering to which such Registration
Statement relates exceeds the amount of any damages that such Holder has
otherwise been required to pay and 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 that was not guilty of such
fraudulent misrepresentation. As between the Company and the Holders, such
parties shall contribute to such aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of the Company,
on the one hand, and Holders, on the other hand, with respect to the statements
or omissions which resulted in such loss, liability, claim, damage or expense,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holders, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or by or on behalf of the Holders, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Holders of the Registrable Securities agree that it would not be just
and equitable if contribution pursuant to this Section 5 were to be determined
by pro rata allocation or by any other method of allocation that does not take
into account the relevant equitable considerations. For purposes of this Section
5, each Affiliate of each Holder, and each director, officer, employee, agent
and Person, if any, who controls a Holder or such Affiliate within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Holder, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each Person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company (except in the case where an indemnified
party is entitled to conduct the defense as provided above).
(e) The indemnity and contribution covenants contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of a Holder or any Person controlling a
Holder, (ii) any sale of any Registrable Securities pursuant to this Agreement
and receipt by the Holders of the proceeds thereof, or (iii) any termination of
this Agreement for any reason, including after the initial filing of the
Registration Statement to which these indemnity and contribution covenants
relate.
60 Rule 144 and Rule 144A. The Company shall use its commercially
reasonable efforts to file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if at any time it is
not required to file such reports but in the past had been required to or did
file such reports, it will, upon the request of any Holder or beneficial owner
of Registrable Securities, make available other information as required by, and
so long as necessary to permit, sales of Registrable Securities pursuant to Rule
144 or Rule 144A, as applicable. Notwithstanding the foregoing, nothing in this
Section 6 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.
7. Underwritten Registrations. No Person may participate in any
underwritten registration hereunder unless such Person (i) agrees to sell such
Registrable Securities on the basis reasonably provided in any underwriting
arrangements approved by the 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.
8. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder of any
of its obligations under this Agreement, each Holder and the Company, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company and each Holder agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
of any of the provisions of this Agreement and each hereby further agrees that,
in the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor the Equity Investor
will enter into any agreement that is inconsistent with the rights granted to
the Holders and indemnified persons in this Agreement or otherwise conflicts
with the provisions hereof. Without the written consent of the Purchaser Holders
of a majority of the outstanding Shares held by Purchaser Holders, the Company
and the Equity Investor shall not grant to any Person any rights which conflict
with or are inconsistent with the provisions of this Agreement; it being
acknowledged that the Company may grant rights to Demand Registrations without
requiring that the Purchaser Holders be granted any rights with respect thereto
(including but not limited to piggy-back registration rights) so long as the
Purchaser Holders are treated in the same manner with respect to such newly
granted rights as the Equity Investor is treated.
(c) Amendments and Waivers.
(i) The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given,
otherwise than with the prior written consent of the Company, MDCP and the
Holders of not less than a majority of the then outstanding Shares.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority of the
Registrable Securities being sold by such Holders pursuant to such
Registration Statement; provided, however, that the provisions of this
sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence. Notwithstanding
the foregoing, no amendment, modification, supplement, waiver or consent
with respect to Section 5 shall be made or given otherwise than with the
prior written consent of each Holder or former Holder affected thereby and
no amendment, modification, supplement, waiver or consent with respect to
Section 2.1(a)(iii) shall be made or given otherwise than with the prior
written consent of GPII and GPII-A.
(ii) The Original Agreement shall automatically be terminated and
superseded upon the execution and delivery of this Agreement by the
requisite parties pursuant to Section 8(c) thereof.
(d) Notices. All notices and other communications provided for herein shall
be made in writing by hand-delivery, next-day air courier, certified first-class
mail, return receipt requested, telex or telecopier:
(i) if to the Company, as provided in the Purchase Agreement,
(ii) if to the Equity Investor:
Madison Dearborn Capital Partners III, L.P.
Xxxxx 0000, Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
(iii) if the Purchasers, as provided in the Purchase Agreement or the
Subscription Agreement as the case may be, or
(iv) if to any other Person who is then the registered Holder of
Shares or Registrable Securities, to the address of such Holder as it
appears in the register therefor of the Company.
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given: when delivered by hand, if personally
delivered; one Business Day after being timely delivered to a next-day air
courier; five Business Days after being deposited in the mail, postage prepaid,
if mailed; when answered back, if telexed; and when receipt is acknowledged by
the recipient's telecopier machine, if telecopied.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each Holder of Shares and Equity Investor
Shares. The Company may not assign any of its rights hereunder without the prior
written consent of each Holder of Shares and Equity Investor Shares; provided
that a merger or consolidation of the Company with another Person pursuant to
which the issuer or issuers of any securities issued to Holders of Shares and
Equity Investor Shares in connection with such merger or consolidation becomes
obligated under this Agreement shall not be considered an assignment.
Notwithstanding the foregoing, no successor or assignee of the Company shall
have any of the rights granted under this Agreement until such Person shall
acknowledge its rights and obligations hereunder by a signed written statement
of such person's acceptance of such rights and obligations. If any transferee of
any Holder shall acquire Shares and/or Equity Investor Shares in any manner,
whether by operation of law or otherwise, such Shares or Equity Investor Shares
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Shares or Equity Investor Shares such person shall be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement and such person shall be entitled to receive the
benefits hereof.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement.
(g) Governing Law; Submission to Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. THE
COMPANY, THE EQUITY INVESTOR AND THE PURCHASERS HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND EACH IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS.
(h) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise
(j) Legends. Each Holder agrees that substantially the following legend
shall be placed on certificates representing any Shares or Equity Investor
Shares owned by them:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED
UNLESS SUCH TRANSFER COMPLIES WITH THE PROVISIONS OF A REGISTRATION
RIGHTS AGREEMENT DATED AS OF APRIL 16, 2001, A COPY OF WHICH IS ON
FILE WITH THE SECRETARY OF OUTSOURCING SOLUTIONS INC. AND IS AVAILABLE
WITHOUT CHARGE UPON WRITTEN REQUEST THEREFOR. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY
ALL OF THE PROVISIONS OF THE AFORESAID AGREEMENT.
The parties hereto acknowledge and agree that the legend required to be placed
on certificates representing any Shares or Equity Investor Shares pursuant to
Section 8(j) of the Original Agreement still applies. The Company agrees to
remove the legend on the Shares and Equity Investor Shares upon the resale of
such Shares and Equity Investor Shares in accordance with the terms of this
Agreement.
(k) Notwithstanding anything to the contrary, nothing contained in this
Agreement shall affect, limit or impair the rights and remedies of Xxxxxx
Financial, Inc. in its capacity as (i) a lender to the Company or any Subsidiary
pursuant to any agreement under which the Company or any Subsidiary has borrowed
or may borrow money, and (ii) the beneficiary of any and all agreements entered
into by the Company or any Subsidiary for the benefit of Xxxxxx Financial, Inc.
as lender.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
OUTSOURCING SOLUTIONS INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
MADISON DEARBORN CAPITAL PARTNERS III, L.P.
By: Madison Dearborn Partners III, L.P.
Its: General Partners
By: Madison Dearborn Partners, Inc.
Its: General Partner
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Managing Director
ARES LEVERAGED INVESTMENT FUND, L.P.
By: Ares Management, L.P.
Its: General Partner
By:
------------------------------------
Name:
Title:
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: Ares Management, L.P.
Its: General Partner
By:
------------------------------------
Name:
Title:
DB CAPITAL INVESTORS, L.P.
By: DB Capital Partners, L.P.
Its: General Partner
DB Capital Partners, Inc.
By: /s/ Xxx X. Xxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
FIRST UNION INVESTORS, INC.
By:
------------------------------------
Name:
Title:
XXXXXX CAPITAL 1330 INVESTORS II, L.P.
By: Xxxxxx Capital 1330 GenPar II, L.L.C.
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
XXXXXX CAPITAL PRIVATE EQUITY FUND III, L.P.
By: Xxxxxx Capital Management, L.L.C.
Its: Investment Manager
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
BNY PARTNERS FUND, L.L.C.
By: BNY Private Investment Management, Inc.
Its: Member Manager
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXXX FINANCIAL, INC.
By:
------------------------------------
Name:
Title:
MAGNETITE ASSET INVESTORS L.L.C.
By: Blackrock Financial Management, Inc.,
as Managing Member
By:
------------------------------------
Name:
Title:
FBR FINANCIAL FUND II, L.P.
By:
------------------------------------
Name:
Title:
HARVEST OPPORTUNITY PARTNERS, L.P.
By:
------------------------------------
Name:
Title:
MADISON DEARBORN SPECIAL EQUITY III, L.P.
By: Madison Dearborn Partners III, L.P.
Its: General Partner
By: Madison Dearborn Partners, Inc.,
Its: General Partner
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Managing Director
SPECIAL ADVISORS FUND I, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Managing Director
GRYPHON PARTNERS II, L.P.,
a Delaware limited partnership
By: Gryphon GenPar II, LLC
Its: General Partner
By: /s/ R. Xxxxx Xxxxxxx
------------------------------------
Name: R. Xxxxx Xxxxxxx
Title: President
GRYPHON PARTNERS II-A, L.P.,
a Delaware limited partnership
By: Gryphon GenPar II, LLC
Its: General Partner
By: /s/ R. Xxxxx Xxxxxxx
------------------------------------
Name: R. Xxxxx Xxxxxxx
Title: President
FIRST UNION MERCHANT BANK 1999, L.L.C.
By: /s/
------------------------------------
Name:
Title: Partner
FIRST UNION CAPITAL PARTNERS 2001, L.L.C.
By: /s/
------------------------------------
Name:
Title: Partner
