1
EXHIBIT 10.5.2
AMENDMENT NO. 1
TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Amendment No. 1, dated February 10, 2000 (this "Amendment No.
1") to the Amended and Restated Registration Rights Agreement, dated December
23, 1999, by and among Exult, Inc., a Delaware corporation (the "Company"),
General Atlantic Partners 54, L.P., a Delaware limited partnership ("GAP LP"),
General Atlantic partners 57, L.P., a Delaware limited partnership ("GAP 57"),
General Atlantic Partners 60, L.P., a Delaware limited partnership ("GAP 60"),
GAP Coinvestment Partners, L.P., a New York limited partnership "GAP
Coinvestment"), GAP Coinvestment Partners II, L.P., a Delaware limited
partnership ("GAP Coinvestment II"), Xxxxx Xxxxxx ("Xxxxxx") and BP
International Limited, a company formed in England ("BPI") (the "Registration
Rights Agreement"). Capitalized terms used herein but not otherwise defined
shall have the respective meaning ascribed thereto in the Registration Rights
Agreement.
WHEREAS, the Company intends to issue to GS Capital Partners
III, L.P., a Delaware limited partnership ("GSCP"), GS Capital Partners III
Offshore, L.P., a Cayman Islands exempted limited partnership ("GSCP Offshore"),
Xxxxxxx, Sachs & Co. Verwaltungs GmbH, a company organized under the laws of
Germany ("GSCV"), Stone Street Fund 2000, L.L.C., a Delaware limited liability
company ("Xxxxx Xxxxxx") (XXXX, XXXX Xxxxxxxx, XXXX and Stone Street are
collectively referred to as the "Goldman Group"), DB Capital Investors, L.P., a
Delaware limited partnership ("DB"), Mellon Ventures II, L.P., a Delaware
limited partnership ("Mellon"), Wilmington Securities, Inc., a Delaware
corporation ("Wilmington"), The Xxxxx X. Xxxxxxx Trust U/A dated November 18,
1985, a trust formed under the laws of Pennsylvania (the "1985 Xxxxx Xxxxxxx
Trust"), Xxxx X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Trustees under Agreement of
Trust dated 12/30/76 for children of Juliet Xxx Xxxxxxx Xxxxxxx, a trust formed
under the laws of Pennsylvania (the "1976 Xxxxxx Xxxxxxx Trust"), Xxxx X.
Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Trustees under Agreement of Trust dated
12/30/76 for children of: Xxxxxx Xxxxxxx Xxxxxx, a trust formed under the laws
of Pennsylvania (the "1976 Xxxxxx Xxxxxx Trust"), Xxxx X. Xxxxxxxxxxxx and
Xxxxxx X. Xxxxxx, Trustees under Agreement of Trust dated 12/30/76 for children
of: Xxxxx Xxx Xxxxxxx, Xx., a trust formed under the laws of Pennsylvania (the
"1976 Xxxxx Xxxxxxx Xx. Trust"), and Xxxx X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees under Agreement of Trust dated 12/30/76 for children of: Xxxxxxx
Xxxxxxx Xxxxxxx, a trust formed under the laws of Pennsylvania (the "1976
Xxxxxxx Xxxxxxx Trust") (Wilmington, the 0000 Xxxxx Xxxxxxx Trust, the 1976
Xxxxxx Xxxxxxx Trust, the 1976 Xxxxxx Xxxxxx Trust, the 0000 Xxxxx Xxxxxxx
Trust, Jr. and the 0000 Xxxxxxx Xxxxxxx Trust collectively are referred to
herein as the "Xxxxxxx Group") (the Goldman Group, DB, Mellon and the Xxxxxxx
Group are collectively referred to herein as the "Series D Stockholders") an
aggregate of
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6,885,480 shares of Series D Preferred Stock pursuant to the Stock Purchase
Agreement, dated as of the date hereof, by and among the Company, the Goldman
Group, DB, Mellon and the Xxxxxxx Group.
WHEREAS, in order to induce each of the Goldman Group, DB,
Mellon, and the Xxxxxxx Group to purchase the Series D Preferred Stock, the
parties hereto desire to amend the Registration Rights Agreement to grant
certain registration rights with respect to the shares of Common Stock issuable
upon the conversion of the Series D Preferred Stock.
NOW THEREFORE, the parties hereto hereby agree as follows:
1 Each of the Goldman Group, DB, Mellon, and the Xxxxxxx Group is hereby
made a party to the Registration Rights Agreement as a Series D
Stockholder in accordance with this Amendment No. 1.
2 The following definitions are hereby added to Section 1 of the
Registration Rights Agreement in the appropriate alphabetical order:
"1976 Xxxxxx Xxxxxx Trust" means the Agreement of Trust dated 12/30/76
for children of: Xxxxxx Xxxxxxx Xxxxxx, a trust formed under the laws
of Pennsylvania.
"1976 Xxxxx Xxxxxxx Xx. Trust" means the Agreement of Trust dated
12/30/76 for children of: Xxxxx Xxx Xxxxxxx, Xx., a trust formed under
the laws of Pennsylvania,
"1976 Xxxxxx Xxxxxxx Trust" means Xxxx X. Xxxxxxxxxxxx and Xxxxxx X
Xxxxxx Trustees under Agreement of Trust dated 12/30/76 for children of
Juliet Xxx Xxxxxxx Xxxxxxx, a trust formed under the laws of
Pennsylvania.
"1976 Xxxxxxx Xxxxxxx Trust" means the Agreement of Trust dated
12/30/76 for children of: Xxxxxxx Xxxxxxx Xxxxxxx, a trust formed under
the laws of Pennsylvania.
"1985 Xxxxx Xxxxxxx Trust" means The Xxxxx X. Xxxxxxx Trust U/A dated
November 18, 1985, a trust formed under the laws of Pennsylvania.
"DB" shall mean DB Capital Investors, L.P., a Delaware limited
partnership.
"Goldman Group" shall mean GSCP, GSCP Offshore, GSCV and Stone Street.
"GSCP" shall mean GS Capital Partners III, L.P., a Delaware limited
partnership.
"GSCP Offshore" shall mean GS Capital Partners III Offshore, L.P., a
Cayman Islands exempted limited partnership.
"GSCV" shall mean Xxxxxxx, Xxxxx & Co. Verwaltungs GmbH, a company
organized under the laws of Germany.
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"Xxxxxxx Group" shall mean Wilmington, the 0000 Xxxxx Xxxxxxx Trust,
the 1976 Xxxxxx Xxxxxxx Trust, the 1976 Xxxxxx Xxxxxx Trust, the 0000
Xxxxx Xxxxxxx Xx. Trust and the 0000 Xxxxxxx Xxxxxxx Trust.
"Mellon" shall mean Mellon Ventures II, L.P., a Delaware limited
partnership.
"Series D Preferred Stock" shall mean the Series D Convertible
Preferred Stock, par value $.0001 per share, of the Company
"Series D Stockholders" shall mean the Goldman Group, DB, Mellon and
the Xxxxxxx Group and any Permitted Transferee (as defined in the
Stockholders Agreement) of any of them to which Shares (as defined in
the Stockholders Agreement) are transferred in accordance with Section
2.2 of the Stockholders Agreement, and the term "Series D Stockholders"
shall mean any such person.
"Stone Street" shall mean Stone Street Fund 2000, L.L.C., a Delaware
limited liability company.
"Wilmington" shall mean Wilmington Securities, Inc., a Delaware
corporation.
3 The definition of "Designated Holder" in Section 1 of the Registration
Rights Agreement is hereby amended to read in its entirety as follows:
"Designated Holder" means each of the Madden Stockholders, the General
Atlantic Stockholders, the BPI Stockholders and the Series D
Stockholders and any transferee of any of them to whom Registrable
Securities have been transferred in accordance with the provisions of
the Stockholders Agreement and Section 10(f) of this Agreement, other
than a transferee to whom Registrable Securities have been transferred
pursuant to a Registration Statement under the Securities Act or Rule
144 or Regulation S under the Securities Act (or any successor rule
thereto).
4 The definition of "Preferred Stock" in Section 1 of the Registration
Rights Agreement is hereby amended to read in its entirety as follows:
"Preferred Stock" means the Series A Preferred Stock ,the Series B
Preferred Stock, the Series C Preferred Stock and the Series D
Preferred Stock.
5 The definition of "Stockholders Agreement" in Section 1 of the
Registration Rights Agreement is hereby amended to read in its entirety
as follows:
"Stockholders Agreement" means the Amended and Restated Stockholders
Agreement, dated December 23, 1999, by and among the Company, GAP LP,
GAP 57, GAP 60, GAP Coinvestment I, GAP Coinvestment II, Madden, BPI
and certain other stockholders of the Company, as amended.
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6 Section 2(a) of the Registration Rights Agreement is hereby amended to
read in its entirety as follows:
"(a) Grant of Rights: The Company hereby grants registration rights
to the Madden Stockholders, the General Atlantic Stockholders,
the BPI Stockholders and the Series D Stockholders upon the
terms and conditions set forth in this Agreement."
7 The first sentence of Section 3(a) of the Registration Rights Agreement
is hereby amended to read in its entirety as follows:
"At any time after the IPO Effectiveness Date, if the Company is not
eligible to use Form S-3 (or any successor form thereto) in connection
with a public offering of its securities, then each of (i) one or more
of the General Atlantic Stockholders as a group, acting through GAP LLC
or its written designee, (ii) one or more of the BPI Stockholders as a
group, acting through BPI or its written designee and (iii) one or more
of the Series D Stockholders (the "Initiating Holders"), may make a
written request to the Company to register, under the Securities Act
(other than pursuant to a Registration Statement on Form S-4 or S-8 or
any successor thereto) (a "Demand Registration"), the number of
Registrable Securities stated in such request; provided, however, that
the Company shall not be obligated to effect more than (I) two such
Demand Registrations for the General Atlantic Stockholders, (II) one
such Demand Registration for the BPI Stockholders or (III) one such
Demand Registration for the Series D Stockholders; and provided
further, that if a Series D Stockholder is the Initiating Holder, such
stockholder shall deliver a notice to the Series D Stockholders not
joining in making such a written request, who then shall have five (5)
business days following the receipt of such a notice to notify the
Company in writing that such Series D Stockholder wishes to join in the
request and be deemed an Initiating Holder for the purposes of the
Demand Registration.
8 Section 10(d) of the Registration Rights Agreement is hereby amended to
read in its entirety as follows:
"(d) Amendments and Waivers: Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless consented to in writing by (i) the
Company, (ii) the Madden Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least a
majority of the aggregate number of Registrable Securities owned by all
of the Madden Stockholders, (iii) the General Atlantic Stockholders
holding Registrable Securities representing (after giving effect to any
adjustments) at least a majority of the aggregate number of Registrable
Securities owned by all of the General Atlantic Stockholders, (iv) the
BPI Stockholders holding Registrable Securities
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representing (after giving effect to any adjustments) at least a
majority of the aggregate number of Registrable Securities owned by all
of the BPI Stockholders and (v) the Series D Stockholders holding
Registrable Securities representing (after giving effect to any
adjustments) at least a majority of the aggregate number of Registrable
Securities owned by all of the Series D Stockholders. Any such written
consent shall be binding upon the Company and all of the Designated
Holders."
9 The following Sections 10(e)(iv) through 10(e)(viii) are hereby added
to Section 10(e) of the Registration Rights Agreement:
(iv) if to any member of the Goldman Group:
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxx
with a copy to:
Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx, Esq.
(v) if to DB Capital Investors, L.P.:
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxx Xxxxxxx and Xxxxx Xxxxxxxxxxx
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
(vi) if to Mellon Ventures II, L.P.:
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000 X. Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxxx
with a copy to:
Milbank Tweed Hadley & XxXxxx, LLP
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxxx
(vii) if to Wilmington Securities, Inc.:
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. XxXxxxxxx
with a copy to:
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx Xxxxx
(viii) if to any other member of the Xxxxxxx Group:
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
with a copy to:
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx Xxxxx
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10 Except as otherwise expressly provided in this Amendment No. 1, all of
the terms and conditions of the Registration Rights Agreement are
hereby ratified and shall remain in full force and effect.
11 This Amendment No. 1 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.
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IN WITNESS WHEREOF, the undersigned have duly executed and
delivered this Amendment No. 1 as of the day and year first above written.
EXULT, INC.
By: _________________________________
Name:
Title:
GENERAL ATLANTIC PARTNERS 54, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC, its
General Partner
By: ________________________________
Name:
Title:
GENERAL ATLANTIC PARTNERS 57, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC, its
General Partner
By: ________________________________
Name:
Title:
GENERAL ATLANTIC PARTNERS 60, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC, its
General Partner
By: ________________________________
Name:
Title:
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GAP COINVESTMENT PARTNERS, L.P.
By: _________________________________
Name:
Title:
GAP COINVESTMENT PARTNERS II, L.P.
By: ____________________________________
Name:
Title:
---------------------------------------
Xxxxx Xxxxxx
BP INTERNATIONAL LIMITED
By: _________________________________
Name:
Title:
GS CAPITAL PARTNERS III, L.P.
By: GS Advisors III, L.L.C., its general partner
By: _________________________________
Name:
Title:
GS CAPITAL PARTNERS III OFFSHORE, L.P
By: GS Advisors III, L.L.C., its general partner
By: __________________________________
Name:
Title:
00
XXXXXXX, XXXXX & XX. XXXXXXXXXXX GmbH
By: ____________________________________
Name:
Title:
and
By: ____________________________________
Name
Title
XXXXX XXXXXX XXXX 0000, X.X.X.
By: ___________________________________
Name:
Title:
DB CAPITAL INVESTORS, L.P.
By: ___________________________________
Name: Xxxxxx Xxxxx
Title: Managing Director
MELLON VENTURES II, L.P.
By: MVMA II, L.P., a Delaware Limited Partnership
Its: General Partner
By: MVMA, Inc., a Delaware Corporation
Its: General Partner
By: ___________________________
Xxxxxxx X. Xxxxxxxx
11
WILMINGTON SECURITIES, INC.
By: ___________________________________
Xxxxxx X. XxXxxxxxx
Vice President
XXXXX X. XXXXXXX, XXXXX XXXXXXXX
XXXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES OF THE XXXXX X. XXXXXXX
TRUST U/A DATED NOVEMBER 18, 1985
By: ___________________________________
X.X. Xxxxxxxxxxxx
Trustee
XXXXXX X. XXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES UNDER AGREEMENT OF TRUST
DATED 12/30/76 FOR CHILDREN OF: JULIET
XXX XXXXXXX XXXXXXX
By: ___________________________________
Xxxxxx X. Xxxxxx
Trustee
By: ___________________________________
X.X. Xxxxxxxxxxxx
Xxxxxxx
00
XXXXXX X. XXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES UNDER AGREEMENT OF TRUST
DATED 12/30/76 FOR CHILDREN OF: XXXXXX
XXXXXXX XXXXXX
By: _________________________________
Xxxxxx X. Xxxxxx
Trustee
By: _________________________________
X.X. Xxxxxxxxxxxx
Trustee
XXXXXX X. XXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES UNDER AGREEMENT OF TRUST
DATED 12/30/76 FOR CHILDREN OF: XXXXX
XXX XXXXXXX, XX.
By: __________________________________
Xxxxxx X. Xxxxxx
Trustee
By: _________________________________
X.X. Xxxxxxxxxxxx
Trustee
XXXXXX X. XXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES UNDER AGREEMENT OF TRUST
DATED 12/30/76 FOR CHILDREN OF: XXXXXXX
XXXXXXX XXXXXXX
By: _________________________________
Xxxxxx X. Xxxxxx
Trustee
By: _________________________________
X.X. Xxxxxxxxxxxx
Trustee
