REGISTRATION RIGHTS AGREEMENT
EXHIBIT 2
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), is
entered into as of March 17, 2006, by and among PRG-Xxxxxxx International, Inc., a Georgia
corporation (the “Company”), and the holders listed on the Schedule of Holders attached hereto as
Exhibit A (each, an “Affiliate Holder” and, collectively, the “Affiliate Holders”).
THE PARTIES TO THIS AGREEMENT enter into this agreement on the basis of the following facts,
intentions and understanding:
A. The Company and certain of the holders of 4 3/4% Convertible
Subordinated Notes due 2006 of the Company (the “Existing Notes”) entered into that certain
Restructuring Support Agreement, dated as of December 23, 2005 (the “Restructuring Support
Agreement”), and, upon the terms and subject to the conditions of the Restructuring Support
Agreement, the Company has agreed to issue to the holders of the Existing Notes in exchange
for the Existing Notes held by such holders (the “Exchange”) an aggregate of (A) Fifty Million
Dollars ($50,000,000) of the Company’s 11% Senior Notes due 2011, plus an additional
principal amount equal to the aggregate accrued and unpaid interest on the Existing Notes
(such 11% Senior Notes, as the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof (the “Senior Notes”)), (B) Sixty Million
Dollars ($60,000,000) of the Company’s 10% Senior Convertible Notes due 2011 (such 10% Senior
Convertible Notes, as the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof (the “Convertible Notes” and, together with the Senior
Notes, the “Notes”)), which shall be convertible into shares of Senior Series B Convertible
Participating Preferred Stock (the “Series B Preferred Stock”) of the Company, which shall be convertible
into shares of Common Stock, without par value (the “Common Stock”) of the Company, and
(C) Fifteen Million Dollars ($15,000,000) of Senior Series A Convertible Participating
Preferred Stock (the “Series A Preferred Stock” and, together with the Series B Preferred Stock, the
“Preferred Stock”) of the Company, which shall be convertible into shares of Common Stock
(such Common Stock, together with the Common Stock issued upon conversion of the Series B
Preferred Stock, the “Conversion Shares”).
B. To induce the Affiliate Holders to consummate the Exchange, the
Company has agreed to provide certain registration rights to the Affiliate Holders under the
Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar
successor statute (collectively, the “1933 Act”), and applicable state securities laws.
NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and each of the Affiliate Holders hereby agree as follows:
Section 1. Definitions As used in this Agreement, the following terms shall have the
following meanings:
“Affiliate” means a person that directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, the Company.
“Business Day” means any day other than Saturday, Sunday or any other day on which commercial
banks in The City of New York are required by law to remain closed.
“Closing Date” means the date upon which the Exchange has been completed.
“Commission” means the Securities and Exchange Commission.
“Investor” means each Affiliate Holder and any transferee or assignee thereof to whom an
Affiliate Holder assigns its rights under this Agreement and who agrees to become bound by the
provisions of this Agreement in accordance with Section 9 of this Agreement, and any subsequent
transferee or assignee thereof to whom a transferee or assignee assigns its rights under this
Agreement and who agrees to become bound by the provisions of this Agreement in accordance with
Section 9 of this Agreement.
“Person” means an individual, a limited liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization or association and governmental or any
department or agency thereof.
“register,” “registered,” and “registration” means a registration effected by preparing and
filing one or more Registration Statements (as defined below) in compliance with the 1933 Act and
pursuant to Rule 415 under the 1933 Act or any successor rule providing for offering securities on
a continuous or delayed basis (“Rule 415”), and the declaration or ordering of effectiveness of
such Registration Statements by the Commission.
“Registrable Securities” means (i) the Senior Notes, (ii) the Convertible Notes, (iii) the
Series A Preferred Stock, (iv) the Series B Preferred stock, (v) the Conversion Shares issued or
issuable upon conversion of the Convertible Notes, the Series A Preferred Stock and the Series B
Preferred Stock, (vi) any shares of capital stock issued or issuable with respect to the Conversion
Shares as a result of any stock split, stock dividend, recapitalization, exchange or similar event
or otherwise, without regard to any limitations on conversions of the Series A Preferred Stock or
the Series B Preferred Stock, and (vii) any shares of capital stock of any entity issued in respect
of the capital stock referenced in the immediately preceding clauses (i), (ii), (iii), (iv), (v)
and (vi) as a result of a merger, consolidation, sale of assets, sale or exchange of capital stock
or other similar transaction; provided, that any Registrable Securities that (A) have been sold
pursuant to a Registration Statement or Rule 144 promulgated under the 1933 Act or (B) are eligible
to be sold without restriction under the 1933 Act, shall no longer be Registrable Securities.
“Registration Statement” means a registration statement or registration statements of the
Company filed under the 1933 Act and covering all of the Registrable Securities.
“Required Holders” means the holders of a majority of the value of the outstanding
Registrable Securities, which value, in the case of Registrable Securities that are shares of
Common Stock, shall be determined by the last sale price of such Common Stock on the trading date
prior to the date for which the Required Holders approval is relevant, and otherwise shall be
determined as the outstanding principal or face amount of the Registrable Securities.
Section 2. Registration
(a) Mandatory Registration. The Company shall prepare and not later than
the earlier of 60 calendar days after the Closing Date or May 15, 2006 (assuming that the
Closing
Date has occurred) (the “Filing Deadline”), file with the Commission a Registration Statement
on Form S-3 covering the resale of all of the Registrable Securities of the Affiliate Holders.
In the event that Form S-3 is unavailable for such a registration, the Company shall comply with
the
provisions of Section 2(c) of this Agreement. The Registration Statement prepared pursuant
hereto shall register all of the Registrable Securities for resale in accordance with the
methods of
distribution elected by the Required Holders. The Registration Statement shall contain (except
if
otherwise directed by the Required Holders) the “Selling Securityholders” and “Plan of
Distribution” sections in the form and substance substantially similar to Exhibit B
hereto. The
Company shall use reasonable best efforts to have the Registration Statement declared
effective
by the Commission as soon as practicable, but not later than 150 calendar days after the
Closing
Date (the “Effectiveness Deadline”).
(b) Legal Counsel. Subject to Section 5 of this Agreement, the Required
Holders shall have the right to select one legal counsel to review and comment upon any
registration pursuant to this Agreement (the “Legal Counsel”), which the Investors agree shall
be Xxxxxxx Xxxx & Xxxxx LLP or such other counsel as thereafter designated in writing by the
Required Holders. Xxxxxxx Xxxx & Xxxxx LLP, or any other counsel designated in writing by the
Required Holders, shall not represent any Investor that sends such counsel written notice that
such Investor does not wish such counsel to represent it in connection with the matters
discussed
in this Section 2(b). The Investors, other than any Investor that delivers the notice
discussed in
the preceding sentence, hereby waive any conflict of interest or potential conflict of
interest that
may arise as a result of the representation of such Investors by Xxxxxxx Xxxx & Xxxxx LLP in
connection with the subject matter of this Agreement.
(c) Ineligibility for Form S-3. If Form S-3 is not available for the registration
of the resale of the Registrable Securities hereunder or the Company is not permitted by the
1933
Act or the Commission to use Form S-3, then the Company shall (i) register the resale of the
Registrable Securities on another appropriate form reasonably acceptable to the Required
Holders, and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such
form is available; provided, however, that the Company shall use reasonable best efforts to
maintain the effectiveness of the Registration Statement then in effect until such time as a
Registration Statement on Form S-3 covering all of the Registrable Securities has been
declared
effective by the Commission or, if earlier, until the end of the Registration Period (as
defined in
Section 3(a)).
(d) Effect of Failure to File, Obtain, and Maintain Effectiveness of
Registration Statement. Subject to any elections made pursuant to Section 4(b), if
(i) a
Registration Statement covering all the Registrable Securities is not filed with the
Commission
on or before the Filing Deadline or is not declared effective by the Commission on or before
the
Effectiveness Deadline, (ii) on any day after such Registration Statement has been declared
effective by the Commission, sales of all of the Registrable Securities required to be
included on
such Registration Statement cannot be made as a matter of law (other than during an Allowable
Grace Period (as defined in Section 3(m) of this Agreement) pursuant to such Registration
Statement (including, without limitation, because of a failure to keep such Registration Statement
effective, to disclose such information as is necessary for sales to be made pursuant to such
Registration Statement or to register a sufficient number of shares of Common Stock), or (iv) a
Grace Period (as defined in Section 3(m) of this Agreement) exceeds the length of an Allowable
Grace Period (each of the items described in clauses (i), (ii) and (iii) above shall be referred
to as a “Registration Delay”), then, as damages to any Affiliate Holder by reason of any such
delay in or reduction of its ability to sell the Registrable Securities, then liquidated damages
(the “Registration Delay Payments”) will accrue (with respect to each Affiliate Holder, based on
the principal amount of the Notes or Convertible Notes or liquidation preference on the Preferred
Stock or, in the event of Conversion Shares, the liquidation preference of the Preferred Stock
from which the Conversion Shares were converted) on Registrable Securities (in addition to the
stated interest or dividends on the Notes, Convertible Notes and Preferred Stock) from and
including the date on which any such Registration Delay shall occur to but excluding the date on
which all Registration Delays have been cured. During the continuation of a Registration Delay,
Registration Delay Payments will accrue at a rate of 0.05% per month during the 90-day period
immediately following the occurrence of such Registration Default and shall increase by 0.05% per
month at the end of each subsequent 90-day period, but in no event shall such rate exceed 3.00%
per annum. The Registration Delay Payments shall be due and payable (1) with respect to the Notes,
on the next scheduled interest payment date, (2) with respect to Preferred Stock, upon the next
scheduled dividend payment date and (3) with respect to Conversion Shares, on the 30th
day following the Registration Delay (and, if such Registration Delay is continuing, each
30th day thereafter so long as any Registration Delay Payments remain due and payable.
Following the cure of all Registration Delays, the accrual of Registration Delay Payments shall
cease. The Registration Delay Payments under this Section 2(d) shall be the sole and exclusive
remedy of the Affiliate Holders of Registrable Securities under this Agreement for a Registration
Delay. Notwithstanding the foregoing, no Registration Delay Payments will be due hereunder to any
Affiliate Holder with respect to any Notes, Preferred Stock or Conversion Shares that are not
Registrable Securities.
Section 3. Related Obligations At such time as the Company is obligated to file a
Registration Statement with the Commission pursuant to Section 2 of this Agreement, the Company
will use reasonable best efforts to effect the registration of all of the Registrable Securities
in accordance with the intended method of disposition thereof and, pursuant thereto, the Company
shall have the following obligations:
(a) The Company shall promptly prepare and file with the Commission a Registration Statement
with respect to all of the Registrable Securities (but in no event later than the applicable Filing
Deadline) and use reasonable best efforts to cause such Registration Statement relating to all of
the Registrable Securities required to be covered thereby to become effective as soon as
practicable after such filing (but in no event later than the applicable Effectiveness Deadline).
The Company shall submit to the Commission, within five (5) Business Days after the Company learns
that no review of a particular Registration Statement will be made by the staff of the Commission
or that the staff has no further comments on a particular Registration Statement, as the case may
be, a request for acceleration of effectiveness of such Registration Statement to a time and date
not later than 48 hours after the submission of such request. The Company shall, subject to the
terms of this Agreement, keep each Registration Statement effective pursuant to Rule 415 at all
times during the period from the date it is initially
declared effective until the earlier of (i) the fifth anniversary of the date such Registration
Statement is declared effective, and (ii) the date as of which all of the Investors no longer hold
Registrable Securities (the “Registration Period”), which Registration Statement, as of its filing
and effective dates (including all amendments or supplements thereto, as of their respective
filing and effective dates), shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein, or necessary to make the statements therein,
not misleading, and the prospectus contained in such Registration Statement, as of its filing date
(including all amendments and supplements thereto, as of their respective filing dates), shall not
contain any untrue statement of a material fact or omit to state a material fact required to be
stated thereon, or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading.
(b) Subject to Section 3(m) of this Agreement, the Company shall prepare and
file with the Commission such amendments (including post-effective amendments) and
supplements to the Registration Statement and the prospectus used in connection with such
Registration Statement, which prospectus is to be filed pursuant to Rule 424 (or any successor
rule thereto) promulgated under the 1933 Act, as may be necessary to keep such Registration
Statement effective at all times during the Registration Period, and, during such period,
comply
with the provisions of the 1933 Act. In the case of amendments and supplements to a
Registration Statement and the prospectus used in connection with such Registration Statement
which are required to be filed pursuant to this Agreement (including pursuant to this Section
3(b)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any
analogous report under the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, or any similar successor statute (the “1934 Act”), the Company shall
have incorporated such report by reference into such Registration Statement, if applicable, or
shall file such amendments or supplements with the Commission on the same day on which the
1934 Act report is filed which created the requirement for the Company to amend or supplement
such Registration Statement and prospectus.
(c) The Company shall permit Legal Counsel, or if no Legal Counsel shall
have been chosen by the Investors, the Investors, to review and provide written comment upon
each Registration Statement, prospectus and all amendments and supplements thereto at least
three (3) Business Days prior to their filing with the Commission, except for any amendment or
supplement or document (a copy of which has been previously furnished to the Investors and
Legal Counsel) which counsel to the Company shall advise the Company is required to be filed
sooner in order to comply with applicable law. The Company shall furnish to the Investors and
Legal Counsel, without charge, (i) promptly after receipt of such correspondence, copies of
all
correspondence from the Commission or the staff of the Commission to the Company or its
representatives relating to each Registration Statement, prospectus and all amendments and
supplements thereto, (ii) promptly after the same is prepared and filed with the Commission,
one
(1) copy of each Registration Statement, prospectus and all amendments and supplements
thereto, including all exhibits and financial statements related thereto, and (iii) promptly
upon the
effectiveness of each Registration Statement and each amendment and supplement thereto, one
(1) copy of the prospectus included in each such Registration Statement and all amendments and
supplements thereto. The Company agrees that it will, and it will cause its counsel to,
consider
in good faith any comments or objections from Legal Counsel, or if no Legal Counsel shall have
been selected, the Investors, as to the form or content of each Registration Statement,
prospectus
and all amendments or supplements thereto or any request for acceleration of the effectiveness of
each Registration Statement, prospectus and all amendments or supplements thereto.
(d) The Company shall furnish to each Investor whose Registrable Securities
are included in any Registration Statement, without charge to such Investor, (i) upon the
effectiveness of each Registration Statement, such number of copies of the prospectus included
in such Registration Statement and all amendments and supplements thereto as such Investor
may reasonably request, and (iii) such other documents, including copies of any preliminary or
final prospectus, as such Investor may reasonably request from time to time in order to
facilitate
the disposition of the Registrable Securities.
(e) Subject to Section 3(m) of this Agreement, and excluding any Registrable
Securities held by Investors electing to exclude their Registrable Securities from the
Registration
Statement under Section 4(b), the Company shall use commercially reasonable efforts to (i)
promptly register and qualify, unless an exemption from registration and qualification
applies,
the resale of the Registrable Securities under such other securities or “blue sky” laws of all
applicable jurisdictions in the United States as any holder of Registrable Securities
reasonably
requests in writing, (ii) promptly prepare and file in those jurisdictions, such amendments
(including post-effective amendments) and supplements to such registrations and qualifications
as may be necessary to maintain the effectiveness thereof during the Registration Period,
(iii)
promptly take such other actions as may be reasonably necessary to maintain such registrations
and qualifications in effect at all times during the Registration Period, and (iv) promptly
take all
other actions reasonably necessary or advisable to qualify the Registrable Securities for sale
in
such jurisdictions; provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to (A) file a general consent to service of process in any
such
jurisdiction, except in such jurisdictions where the Company is subject to service of process
or
(B) qualify generally to do business in any such jurisdiction, except in such jurisdictions
where
the Company would otherwise be required to qualify. The Company shall promptly notify each
Investor who holds Registrable Securities and Legal Counsel of the receipt by the Company of
any notification with respect to the suspension of the registration or qualification of any of
the
Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in
the
United States or its receipt of notice of the initiation or threatening of any proceeding for
such
purpose.
(f) Notwithstanding anything to the contrary set forth herein, as promptly as
practicable after becoming aware of such event, the Company shall notify each Investor and
Legal Counsel in writing of the happening of any event as a result of which (i) the
Registration
Statement or any amendment or supplement thereto, as then in effect, includes an untrue
statement of a material fact or omission to state a material fact required to be stated
therein or
necessary to make the statements therein not misleading or (ii) the prospectus related to such
Registration Statement or any amendment or supplement thereto includes an untrue statement of
a material fact or omission 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, and, subject to Section 3(m) of this Agreement, promptly prepare a supplement or
amendment to such Registration Statement and prospectus to correct such untrue statement or
omission, and deliver such number of copies of such supplement or amendment to each Investor
and Legal Counsel as such Investor or Legal Counsel may reasonably request. The Company
shall also promptly notify each Investor and Legal Counsel in writing (i) when a prospectus and
each prospectus supplement or amendment thereto has been filed, and when a Registration Statement
and each amendment (including post-effective amendments) has been declared effective by the
Commission (notification of such effectiveness shall be delivered to each Investor and Legal
Counsel by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any
request by the Commission for amendments or supplements to a Registration Statement or related
prospectus or related information, and (iii) of the Company’s reasonable determination that an
amendment (including any post-effective amendment) or supplement to a Registration Statement or
prospectus would be appropriate (subject to Section 3(n) hereof).
(g) Subject to Section 3(m) of this Agreement, the Company shall use reasonable best efforts
to (i) prevent the issuance of any stop order or other suspension of effectiveness of a
Registration Statement, or the suspension of the qualification of any of the Registrable Securities
for sale in any jurisdiction, and (ii) if such an order or suspension is issued, obtain the
withdrawal of such order or suspension at the earliest practicable moment and notify each holder of
Registrable Securities and Legal Counsel of the issuance of such order and the resolution thereof
or its receipt of notice of the initiation or threat of any proceeding for such purpose.
(h) The Company shall use reasonable best efforts to cause all the Conversion Shares to be
listed on each securities exchange or traded on each securities market on which securities of the
same class or series issued by the Company are then listed or traded, as the case may be, if any,
if the listing or trading of such Conversion Shares is then permitted under the rules of such
exchange or market. The Company shall pay all fees and expenses in connection with satisfying its
obligation under this Section 3(i).
(i) In connection with any sale or transfer of Registrable Securities pursuant to a
Registration Statement, the Company shall cooperate with the Investors who hold Registrable
Securities being offered and, to the extent applicable, facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legend) representing the Registrable
Securities to be offered pursuant to a Registration Statement and enable such certificates to be
in such denominations or amounts, as the case may be, as the Investors may reasonably request and,
registered in such names as the Investors may request.
(j) If requested by an Investor, the Company shall (i) as soon as practicable, incorporate in
each prospectus supplement or post-effective amendment to the Registration Statement such
information as an Investor provides in writing and reasonably requests to be included therein
relating to the sale and distribution of the Registrable Securities, and (ii) as soon as
practicable, make all required filings of such prospectus supplement or post-effective amendment
after being notified of the matters to be incorporated in such prospectus supplement or
post-effective amendment.
(k) The Company shall comply with all applicable rules and regulations of the Commission in
connection with any registration hereunder.
(1) Within two (2) Business Days after a Registration Statement is ordered effective by the
Commission, the Company will so notify the transfer agent for the Registrable
Securities and the Investors whose Registrable Securities are included in the Registration
Statement.
(m) Notwithstanding anything to the contrary herein, at any time after a Registration
Statement has been declared effective by the Commission, the Company may delay the disclosure of
material non-public information concerning the Company if the disclosure of such information at
the time is not, in the good faith judgment of the Board of Directors of the Company, in the best
interests of the Company (a “Grace Period”); provided, however, that the Company shall promptly
(i) notify the Investors in writing of the existence of material non-public information giving
rise to a Grace Period (provided that the Company shall not disclose the content of such material
non-public information to the Investors) and the date on which the Grace Period will begin, and
(ii) notify the Investors in writing of the date on which the Grace Period ends; provided further,
that no single Grace Period shall exceed an aggregate of thirty (30) days in any three (3) month
period, and during any three hundred sixty-five (365) day period, the aggregate of all of the
Grace Periods shall not exceed an aggregate of ninety (90) days and the first day of any Grace
Period must be at least five (5) trading days after the last day of any prior Grace Period (each
Grace Period complying with this provision being an “Allowable Grace Period”). For purposes of
determining the length of a Grace Period, the Grace Period shall be deemed to begin on and include
the date the Investors receive the notice referred to in clause (i) above and shall end on and
include the later of the date the Investors receive the notice referred to in clause (ii) above
and the date referred to in such notice; provided, however, that no Grace Period shall be longer
than an Allowable Grace Period. The provisions of Section 3(g) of this Agreement shall not be
applicable during the period of any Allowable Grace Period. Upon expiration of the Grace Period,
the Company shall again be bound by the first sentence of Section 3(f) of this Agreement.
(n) The Company shall make generally available to its security holders as soon as practical,
but not later than ninety (90) days after the close of the period covered thereby, an earnings
statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under
the 0000 Xxx) covering a twelve-month period beginning not later than the first day of the
Company’s fiscal quarter next following the effective date of a Registration Statement, and which
requirement will be deemed to be satisfied if the Company timely files complete and accurate
information on Forms 10Q, 00-X xxx 0-X xxxxx xxx 0000 Xxx and otherwise complies with Rule 158
under the 1933 Act.
Section 4. Obligations of the Investors
(a) At least ten (10) Business Days prior to the first anticipated filing date of a
Registration Statement, the Company shall notify each Investor in writing of the information the
Company requires from each such Investor if such Investor elects to have any of such Investor’s
Registrable Securities included in such Registration Statement. It shall be a condition precedent
to the obligations of the Company to complete the registration pursuant to this Agreement with
respect to the Registrable Securities of a particular Investor that such Investor shall furnish to
the Company promptly such information regarding itself, the Registrable Securities held by it and
the intended method of disposition of the Registrable Securities held by it as shall be reasonably
required to effect the effectiveness of the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the Company may reasonably
request. Each Investor shall promptly notify the Company of any material change with respect to
such information previously provided to the Company by such Investor. No Investor shall be
entitled to Registration Delay payments pursuant to Section 2(d) hereof unless and until such
Investor shall have used its reasonable best efforts to provide all such reasonably requested
information.
(b) Each Investor agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing of any Registration
Statement hereunder, unless such Investor has notified the Company in writing of such
Investor’s
election to exclude all of such Investor’s Registrable Securities from such Registration
Statement,
in which case, such Investor does not need to cooperate with the Company until it notifies the
Company of its desire to include one or more Registrable Securities in such Registration
Statement.
(c) Each Investor agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3(g) or 3(m) of this Agreement or
the
first sentence of Section 3(f) of this Agreement, such Investor will immediately discontinue
disposition of Registrable Securities pursuant to any Registration Statements covering such
Registrable Securities until such Investor’s receipt of the copies of the amended or
supplemented
prospectus contemplated by Section 3(g) of this Agreement or the first sentence of Section
3(f)
of this Agreement or receipt of notice that no amendment or supplement is required and, if so
directed by the Company, such Investor shall deliver to the Company (at the expense of the
Company) or destroy (and deliver to the Company a certificate of destruction) all copies of
the
prospectus covering such Registrable Securities current at the time of receipt of such notice
(other than a single file copy, which such Investor may keep) in such Investor’s possession.
Section 5. Expenses of Registration All expenses, other than underwriting discounts
and commissions, incurred in connection with registrations, filings or qualifications pursuant to
Sections 2 and 3 of this Agreement, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, transfer agent fees and fees and disbursements
of counsel for the Company, shall be paid by the Company. The Company shall pay all of the
Investors’ reasonable costs incurred in connection with the successful enforcement of the
Investors’ rights under this Agreement; provided, however, the Company shall be responsible for
the reasonable fees and disbursements of not more than one counsel, who shall be Legal Counsel.
Section 6. Indemnification In the event any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) To the fullest extent permitted by law, the Company will, and hereby does, indemnify,
hold harmless and defend each Investor, the directors, officers, members, partners, employees,
agents, representatives of, and each Person, if any, who controls any Investor within the meaning
of the 1933 Act or the 1934 Act (each, an “Indemnified
Person”), against any losses, claims,
damages, liabilities, judgments, fines, penalties, charges, costs, reasonable attorneys’ fees,
amounts paid in settlement or expenses, joint or several,
(collectively, “Claims”) incurred in
investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation
or appeal taken from the foregoing by or before any court or governmental,
administrative or other regulatory agency, body or the Commission, whether pending or threatened,
whether or not an indemnified party is or may be a party thereto (“Indemnified Damages”), to which
any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact in a Registration Statement or any amendment (including
post-effective amendments) or supplement thereto, or the omission or alleged omission 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, (ii) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary prospectus if authorized
for use by the Company prior to the effective date of such Registration Statement, or contained in
the final prospectus (as amended or supplemented, if any) or the omission or alleged omission to
state therein any material fact necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading, or (iii) any violation
or alleged violation by the Company of the 1933 Act, the 1934 Act, any other federal law, any state
or common law, or any rule or regulation promulgated thereunder in connection with a Registration
Statement (the matters in the foregoing clauses (i) through (iii) being, collectively,
“Violations”). Subject to Section 6(c) of this Agreement, the Company shall reimburse the
Indemnified Persons promptly as such expenses are incurred and are due and payable, for any legal
fees or other expenses reasonably incurred by them in connection with investigating or defending
any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(a): (i) shall not apply to a Claim by an Indemnified Person
arising out of or based upon a Violation which occurs in reliance upon and in conformity with
information furnished in writing to the Company by an Investor or its Legal Counsel expressly for
use in connection with the preparation of the Registration Statement or any such amendment thereof
or supplement thereto; (ii) shall not be available to the extent such Claim is based on a failure
of the Investor to deliver or to cause to be delivered the prospectus made available by the
Company, including a corrected prospectus, if such prospectus or corrected prospectus was timely
made available by the Company pursuant to Section 3(d) of this Agreement; and (iii) shall not apply
to amounts paid in settlement of any Claim if such settlement is effected without the prior written
consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed.
Such indemnity shall remain in full force and effect regardless of any investigation made by or on
behalf of the Indemnified Person and shall survive the transfer of the Registrable Securities by
the Investors pursuant to Section 9 of this Agreement.
(b) In connection with any Registration Statement in which an Investor is participating, each
such Investor agrees to severally and not jointly indemnify, hold harmless and defend, to the same
extent and in the same manner as is set forth in Section 6(a) of this Agreement, the Company, each
of its directors, officers, employees, agents, affiliates and each Person, if any, who controls,
or is alleged to control, the Company within the meaning of the 1933 Act or the 1934 Act (each, an
“Indemnified Party”), against any Claims or Indemnified Damages to which any of them may become
subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such Claims or Indemnified
Damages arise out of or are based upon any Violation (including for purposes of this paragraph, a
material violation of this Agreement by the Investor), in each case to the extent, and only to the
extent, that such Violation occurs in reliance upon and in conformity with written information
furnished to the Company by such Investor or its Legal Counsel expressly for use in connection
with such Registration Statement and, subject
to Section 6(c) of this Agreement, such Investor will reimburse any legal or other expenses
reasonably incurred by an Indemnified Party in connection with investigating or defending any such
Claim; provided, however, that the indemnification agreement contained in this Section 6(b) and
the agreement with respect to contribution contained in Section 7 of this Agreement shall not
apply to amounts paid in settlement of any Claim if such settlement is effected without the prior
written consent of such Investor, which consent shall not be unreasonably withheld or delayed;
provided, further, that the Investor shall be liable under this Section 6(b) for only that amount
of the Claims and Indemnified Damages as does not exceed the net proceeds to such Investors as a
result of the sale of Registrable Securities pursuant to such Registration Statement. Such
indemnification agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of such Indemnified Party and shall survive the transfer of the Registrable
Securities by the Investors pursuant to Section 9 of this Agreement. Notwithstanding anything to
the contrary contained herein, the indemnification agreement contained in this Section 6(b) shall
not inure to the benefit of any Indemnified Party if the untrue statement or omission of material
fact contained in the preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented.
(c) Promptly after an Indemnified Person or Indemnified Party under this Section 6 has
knowledge of any Claim as to which such Indemnified Person or Indemnified Party reasonably believes
indemnity may be sought or promptly after such Indemnified Person or Indemnified Party receives
notice of the commencement of any action or proceeding (including any governmental action or
proceeding) involving a Claim, such Indemnified Person or Indemnified Party shall, if a Claim in
respect thereof is to be made against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of such Claim, and the indemnifying party shall have the right
to participate in, and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person or the Indemnified
Party, as the case may be; provided, however, that an Indemnified Person or Indemnified Party shall
have the right to retain its own counsel if, in the reasonable opinion of counsel retained by the
indemnifying party, the representation by such counsel of the Indemnified Person or Indemnified
Party and the indemnifying party would be inappropriate due to actual or potential differing
interests between such Indemnified Person or Indemnified Party and any other party represented by
such counsel in such proceeding; provided, further, that the indemnifying party shall not be
responsible for the reasonable fees and expense of more than one (1) separate legal counsel for
such Indemnified Person or Indemnified Party. In the case of an Indemnified Person, the legal
counsel referred to in the immediately preceding sentence shall be selected by the Required
Holders. The Indemnified Party or Indemnified Person shall cooperate fully with the indemnifying
party in connection with any negotiation or defense of any such action or Claim by the indemnifying
party and shall furnish to the indemnifying party all information reasonably available to the
Indemnified Party or Indemnified Person which relates to such action or Claim. The indemnifying
party shall keep the Indemnified Party or Indemnified Person fully apprised at all times as to the
status of the defense or any settlement negotiations with respect thereto. No indemnifying party
shall be liable for any settlement of any action, claim or proceeding effected without its prior
written consent; provided, however, that the indemnifying party shall not unreasonably withhold,
delay or condition its consent. No indemnifying party shall, without the prior written consent of
the Indemnified Party or Indemnified Person, consent to entry of any judgment or enter into any
settlement or other
compromise which does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party or Indemnified Person of a full release from all liability in
respect to such Claim and action and proceeding. After indemnification as provided for under this
Agreement, the rights of the indemnifying party shall be subrogated to all rights of the
Indemnified Party or Indemnified Person with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. The failure to deliver written
notice to the indemnifying party as provided in this Agreement shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified Party
under this Section 6, except
to the extent that the indemnifying party is prejudiced in its ability to defend such action.
(d) No Person involved in the sale of Registrable Securities who is guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the 0000 Xxx) in
connection
with such sale shall be entitled to indemnification from any Person involved in such sale of
Registrable Securities who is not guilty of fraudulent misrepresentation.
(e) The indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation or defense, as and when
bills are received or Indemnified Damages are incurred.
(f) The indemnification agreements contained herein shall be in addition to (i)
any cause of action or similar right of the Indemnified Party or Indemnified Person against
the
indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject
to
pursuant to the law.
Section
7. Contribution To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with
respect to any amounts for which it would otherwise be liable under Section 6 of this Agreement to
the fullest extent permitted by law; provided, however, that: (i) no contribution shall be made
under circumstances where the maker would not have been liable for indemnification under the fault
standards set forth in Section 6 of this Agreement, (ii) no Person involved in the sale of
Registrable Securities who is guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) in connection with such sale shall be entitled to contribution
from any Person involved in such sale of Registrable Securities who is not guilty of fraudulent
misrepresentation, and (iii) contribution by any seller of Registrable Securities shall be limited
in amount to the net amount of proceeds received by such seller from the sale of such Registrable
Securities pursuant to such Registration Statement. The provisions of this Section 7 shall remain
in full force and effect, regardless of the investigation made by or on behalf of the
beneficiaries of this Section 7 and shall survive the transfer of Registrable Securities by the
Investors pursuant to Section 9 of this Agreement.
Section 8. Reporting.
(a) Reports Under The 1934 Act. With a view to making available to the Investors the benefits
of Rule 144 promulgated under the 1933 Act or any other similar rule or regulation of the
Commission that may at any time permit the Investors to sell securities of the
Company to the public without registration (“Rule 144”), the Company shall use reasonable
best efforts to:
(1) make and keep public information available, as those terms are understood and
defined in Rule 144;
(2) file with the Commission in a timely manner all reports and other documents
required of the Company under the 1933 Act and the 1934 Act; and
(3) furnish to each Investor, so long as such Investor owns Registrable Securities,
promptly upon request, (A) a written statement by the Company, if true, that it has
complied with the applicable reporting requirements of Rule 144, the 1933 Act and the 1934
Act, (B) a copy of the most recent annual or quarterly report of the Company and copies of
such other reports and documents so filed by the Company, and (C) such other information as
may be reasonably requested to permit the Investors to sell such securities pursuant to
Rule 144 without registration.
(b) Rule 144A Information. The Company shall, upon request of any Investor, make available to
such Investor the information required by Rule 144A(d)(4) (or any successor rule) under the 1933
Act.
Section 9. Assignment of Registration Rights The rights under this Agreement shall be
assignable by an Investor to which the Registrable Securities are transferable (other than pursuant
to a Registration Statement or Rule 144 under the 0000 Xxx); provided that, if and to the extent
that such Notes, Preferred Stock or Conversion Shares remain Registrable Securities following such
transfer: (i) the Investor agrees in writing with the transferee or assignee to assign such rights,
and a copy of such agreement is furnished to the Company within a reasonable time after such
assignment; (ii) the Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of (a) the name and address of such transferee or assignee, and (b)
the securities with respect to which such rights are being transferred or assigned; (iii) at or
before the time the Company receives the written notice contemplated by clause (ii) of this
sentence, the transferee or assignee agrees in writing with the Company to be bound by all of the
obligations of an Investor under this Agreement; and (iv) such transfer shall have been conducted
in accordance with all applicable federal and state securities laws.
Section 10. Amendment of Registration Rights Any provision of this Agreement
may be amended and the observance of any provision of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Required Holders. Any amendment or waiver affected in
accordance with this Section 10 shall be binding upon each
Investor and the Company. No such
amendment shall be effective to the extent that it does not apply to all of the holders of the
Registrable Securities. No consideration shall be offered or paid to any Person to amend or
consent to a waiver or modification of any provision of any of this Agreement unless the same
consideration also is offered to all of the parties to this Agreement.
Section 11. Miscellaneous
(a) A Person is deemed to be a holder of Registrable Securities whenever such Person owns or
is deemed to own of record such Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more Persons with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice or election received from
such record owner of such Registrable Securities.
(b) Any notices, consents, waivers or other communications required or permitted to be given
under the terms of this Agreement must be in writing and will be deemed to have been delivered:
(i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile (evidenced
by mechanically or electronically generated receipt by the sender’s facsimile machine); or (iii)
one (1) Business Day after deposit with a nationally recognized overnight delivery service, in
each case properly addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
If to the Company:
PRG-Xxxxxxx International, Inc.
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx XxXxxxxx, Xx., Esq.
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx XxXxxxxx, Xx., Esq.
with an additional copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: W. Xxxxxx Xxx, Esq.
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: W. Xxxxxx Xxx, Esq.
with an additional copy to:
Xxxxxx Xxxxxx Xxxxxxx LLP
000 00xx Xxxxxx XX, Xxxxx 0000
Xxxxxxx, XX 00000
000 00xx Xxxxxx XX, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxx, Xx., Esq.
Attention: Xxxxxx Xxxxx, Xx., Esq.
If to Legal Counsel:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxx, Esq.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxx, Esq.
If to an Affiliate Holder, to its address and facsimile number set forth on the Schedule of
Affiliate Holders attached hereto as Exhibit A, with copies to such Affiliate Holder’s
representatives as set forth on the Schedule of Affiliate Holders, or to such other address and/or
facsimile number and/or to the attention of such other Person as the recipient party has specified
by written notice given to each other party. Failure to transmit notice or communication to an
Affiliate Holder or any defect in it shall not affect its sufficiency with respect to other
Affiliate Holders. If a notice or communication is given or made in the manner provided above, it
is duly given, whether or not the addressee receives it.
(c) Failure of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.
(d) All questions concerning the construction, validity, enforcement and interpretation of
this Agreement shall be governed by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the State of New York
or any other jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting the City of New York, Borough of Manhattan,
for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert
in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction
of any such court, that such suit, action or proceeding is brought in an inconvenient forum or
that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect
the validity or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other jurisdiction. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(e) This Agreement, the Restructuring Support Agreement, the Senior Notes, the
Convertible Notes, the Preferred Stock and the documents referenced herein and therein (the
“Transaction Documents”) constitute the entire agreement among the parties hereto with respect to
the subject matter hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. The Transaction
Documents supersede all prior agreements and understandings among the parties hereto with respect
to the subject matter hereof and thereof.
(f) Subject to the requirements of Section 9 of this Agreement, this Agreement shall inure
to the benefit of and be binding upon the permitted successors and assigns of each of the parties
hereto.
(g) The headings in this Agreement are for convenience of reference only and shall not limit
or otherwise affect the meaning hereof.
(h) This Agreement may be executed in identical counterparts, each of which shall be deemed
an original but all of which shall constitute one and the same agreement. This Agreement, once
executed by a party, may be delivered to the other parties hereto by facsimile transmission of a
copy of this Agreement bearing the signature of the party so
delivering this Agreement.
(i) Each party shall do and perform, or cause to be done and performed, all such further acts
and things, and shall execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.
(j) All consents and other determinations made by the Investors pursuant to this Agreement
shall be made, unless otherwise specified in this Agreement, by the Required Holders.
(k) This Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other Person.
(l) The obligations of each Affiliate Holder under any Transaction Document are several and
not joint with the obligations of any other Affiliate Holder, and no Affiliate Holder shall be
responsible in any way for the performance of the obligations of any other Affiliate Holder under
any Transaction Document. Nothing contained herein or in any other Transaction Document, and no
action taken by any Affiliate Holder pursuant hereto or thereto, shall be deemed to constitute the
Affiliate Holders as a partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Affiliate Holders are in any way acting in concert or as a group with
respect to such obligations or the transactions contemplated by the Transaction Documents. Each
Affiliate Holder confirms that it has independently participated in the negotiation of the
transaction contemplated hereby with the
advice of its own counsel and advisors. Each Affiliate Holder shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights arising out of this
Agreement or out of any other Transaction Documents, and it shall not be necessary for any other
Affiliate Holder to be joined as an additional party in any proceeding for such purpose.
IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be duly
executed as of day and year first above written.
| COMPANY | ||||||||
| PRG-XXXXXXX INTERNATIONAL, INC. | . | |||||||
| By: | [ILLEGIBLE] | |||||||
| Title: | ||||||||
[Signatures of Affiliate Holders on Following Page]
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
| XXXX STRATEGIC PARTNERS II, L.P. | ||||||
| By: | /s/ Xxxx Xxxxxxx | |||||
| Title: Partner | ||||||
| XXXX STRATEGIC PARTNERS II | ||||||
| GmbH & Co. KG | ||||||
| By: | /s/ Xxxx Xxxxxxx | |||||
| Title: Partner | ||||||
| XXXX CAPITAL PARTNERS, L.P. | ||||||
| By: | /s/ Xxxx Xxxxxxx | |||||
| Title: Partner | ||||||
| XXXXXXX CAPITAL PARTNERS, L.P. | ||||||
| By: | /s/ Xxxx Xxxxxxx | |||||
| Title: Partner | ||||||
| XXXXXXX CAPITAL PARTNERS II, L.P. | ||||||
| By: | /s/ Xxxx Xxxxxxx | |||||
| Title: Partner | ||||||
| XXXXXXX CAPITAL PARTNERS QP, L.P. | ||||||
| By: | /s/ Xxxx Xxxxxxx | |||||
| Title:Partner | ||||||
| XXXXXXX CAPITAL PARTNERS S, L.P. | ||||||
| By: | /s/ Xxxx Xxxxxxx
|
|||||
| Name: Xxxx Xxxxxxx | ||||||
| Title: Partner | ||||||
| PARKCENTRAL GLOBAL HUB LIMITED | ||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||
| Title: President | ||||||
| PETRUS SECURITIES, L.P. | ||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||
| Title: Pres. of GP | ||||||
EXHIBIT A
EXHIBIT A TO REGISTRATION RIGHTS AGREEMENT
SCHEDULE OF HOLDERS
SCHEDULE OF HOLDERS
| PRINCIPAL | NUMBER OF | NUMBER OF | ||||||||||||||
| PRINCIPAL | AMOUNT OF | SERIES A | SERIES B | |||||||||||||
| AMOUNT OF | CONVERTIBLE | PREFERRED | PREFERRED | |||||||||||||
| NAME OF HOLDERS | SENIOR NOTES1 | NOTES | SHARES | SHARES2 | ||||||||||||
1.Xxxx Strategic Partners
II, L.P. |
$ | [6,094,050] | $ | 7,054,560 | 14,697 | [14,694.65] | ||||||||||
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxxxxxx, XX 00000 Facsimile: (000) 000-0000 |
||||||||||||||||
2. Xxxx Strategic Partners
II |
$ | [125,638] | $ | 145,440 | 303 | [302.95] | ||||||||||
GmbH & Co. KG 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxxxxxx, XX 00000 Facsimile: (000) 000-0000 |
||||||||||||||||
3. Xxxx Capital Partners,
L.P. |
$ | [2488] | $ | 2880 | 6 | [6] | ||||||||||
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxxxxxx, XX 00000 Facsimile: (000) 000-0000 |
||||||||||||||||
4. Xxxxxxx Capital Partners,
L.P. |
$ | [3,046,402] | $ | 3,526,560 | 7,347 | [7,345.82] | ||||||||||
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxxxxxx, XX 00000 Facsimile: (000) 000-0000 |
||||||||||||||||
5. Xxxxxxx Capital Partners
(QP), L.P. |
$ | [2,710,540] | $ | 3,137,760 | 6,537 | [6535.95] | ||||||||||
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxxxxxx, XX 00000 Facsimile: (000) 000-0000 |
||||||||||||||||
| 1 | The principal amount of the Senior Notes was calculated by issuing $414,64583333 per $1,000 of existing notes surrendered. Please note that the numbers listed in Exhibit A may not be exact due to rounding. | |
| 2 | No shares of Series B Preferred Shares are currently issued. This number assumes full conversion of the Senior Convertible Notes. |
| PRINCIPAL | NUMBER OF | NUMBER OF | ||||||||||||||
| PRINCIPAL | AMOUNT OF | SERIES A | SERIES B | |||||||||||||
| AMOUNT OF | CONVERTIBLE | PREFERRED | PREFERRED | |||||||||||||
| NAME OF HOLDERS | SENIOR NOTES1 | NOTES | SHARES | SHARES2 | ||||||||||||
6. Xxxxxxx Capital Partners
II, L.P. |
$ | [2,487,875] | $ | 2,880,000 | 6,000 | [5999.04] | ||||||||||
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxxxxxx, XX 00000 Facsimile: (000) 000-0000 |
||||||||||||||||
7. Xxxxxxx Capital Partners
S, L.P. |
$ | [462,745] | $ | 535,680 | 1,116 | [1,115.82] | ||||||||||
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxxxxxx, XX 00000 Facsimile: (000) 000-0000 |
||||||||||||||||
8. Parkcentral Global Hub
Limited |
$ | [8,311576] | $ | 9,621,600 | 20,045 | [20,041.79] | ||||||||||
0000 Xxxx Xxxxx Xxxxxxx Xxxxx, XX 00000 Facsimile: (000) 000-0000 |
||||||||||||||||
9. Petrus Securities, L.P. |
$ | [1,617,119] | $ | 1,872,000 | 3,900 | [3,899.37] | ||||||||||
0000 Xxxx Xxxxx Xxxxxxx Xxxxx, XX 00000 Facsimile: (000) 000-0000 |
||||||||||||||||
EXHIBIT B
