EXHIBIT 10(kk)
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 3, 2001 by and between
ACCESS WORLDWIDE COMMUNICATIONS, INC., a Delaware corporation (the "Company"),
the Lenders listed on the signature pages hereto (each a "Lender" and
collectively, along with their respective transferees, the "Lenders") and BANK
OF AMERICA, N.A., as Agent for such Lenders (in such capacity, the "Agent").
STATEMENT OF PURPOSE
WHEREAS, pursuant to the terms of that certain Fourth Amendment and
Waiver Agreement dated the date hereof by and among the Company, the Guarantors
identified on the signature pages thereto, the Agent and the Lenders (the
"Fourth Amendment and Waiver Agreement"), the Agent is receiving a Common Stock
Purchase Warrant dated the date hereof (collectively, the "Warrant") entitling
such Agent to purchase shares for the benefit of the Lenders (subject to
adjustment as provided therein) of the Company's Common Stock, par value $0.01
per share (the "Common Stock"); and
WHEREAS, in order to induce the Lenders to enter into the Fourth
Amendment and Waiver Agreement, the Company desires to grant registration rights
to the Lenders for the shares of Common Stock issuable upon the exercise of the
Warrant;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto agree as follows:
1. Definitions. As used herein, the following defined terms
shall have the following respective meanings:
"Capital Stock" means the Company's Common Stock and any other
class of common stock created by the Company in the future.
"Common Stock" has the meaning set forth in the recitals
hereof.
"Company" has the meaning set forth in the preamble hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Act Registration Statement" means a registration
statement filed with the SEC pursuant to the Exchange Act.
"Holders" means any holder or holders of shares of Capital
Stock issued to the Agent for the benefit of the Lenders pursuant to
the Warrant.
"Indemnified Party" has the meaning set forth in Section 7(c).
"Indemnifying Party" has the meaning set forth in Section
7(c).
"Investor Registrable Securities" means (i) any Capital Stock
issued or issuable upon exercise of the Warrant, (ii) any Capital Stock
issued or issuable with respect to the Capital Stock referred to in
clause (i) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization and (iii) any other shares of
Capital Stock held by Holders of Capital Stock described in clauses (i)
or (ii) above.
The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration
statement in compliance with the Securities Act or the Exchange Act and
the declaration or ordering of the effectiveness of such registration
statement by the SEC.
"Registrable Securities" means the Investor Registrable
Securities. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when they have been
distributed to the public pursuant to an offering registered under the
Securities Act or sold to the public through a broker, dealer or market
maker in compliance with Rule 144 under the Securities Act (or any
similar rule then in force) or repurchased by the Company or any
Subsidiary. For purposes of this Agreement, a Holder shall be deemed to
be a Holder of Registrable Securities, and the Registrable Securities
shall be deemed to be in existence, whenever such Holder has the right
to acquire directly or indirectly such Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the
exercise of such right), whether or not such acquisition has actually
been effected, and such Holder shall be entitled to exercise the rights
of a Holder of Registrable Securities hereunder (it being understood,
however, that any Registrable Securities which are not shares of
Capital Stock shall be converted into or exercised for shares of
Capital Stock immediately prior to the closing of any registration
pursuant to which such Capital Stock is to be sold).
"Registration Expenses" has the meaning set forth in Section
6.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means all shares of Capital Stock of the Company held
by the Lenders or which the Holders shall have acquired by or through a
Lender (including such shares as may represent stock dividends or a
stock split).
"Subsidiary" means (i) any corporation more than 50% of the
outstanding voting securities of which are owned by the Company or any
Subsidiary, directly or indirectly, or (ii) a partnership, limited
liability company or other Holder in which the Company or any
Subsidiary holds a general partnership or other equity interest
sufficient to enable it to direct the management policies thereof.
Unless otherwise stated, all other capitalized terms used herein but
not otherwise defined shall have the meanings set forth in the Warrant.
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2. Demand Registrations.
(a) Requests for Registration. At any time following the
earlier to occur of (i) January 1, 2002 and (ii) the occurrence of a
Put Event (as defined in Section 9 of the Warrant), the Holders of at
least 51% of the Investor Registrable Securities may request
registration under the Securities Act of all or any portion of their
Registrable Securities on Form S-1 or Form S-2 or any other successor
or similar long-form registration ("Long-Form Registrations"), and the
Holders of at least 25% of the Investor Registrable Securities may
request registration under the Securities Act of all or an portion of
their Investor Registrable Securities on Form S-3 or any other
successor or similar short-form registration ("Short-Form
Registrations") if the Company is eligible to use any such short form.
All registrations requested pursuant to this Section 2(a) are referred
to herein as "Demand Registrations." Each request for a Demand
Registration shall specify the approximate number of Registrable
Securities requested to be registered and the anticipated per share
price range for such offering. Within ten days after receipt of a
request for a Demand Registration, the Company shall give written
notice of such requested registration to all other Holders of
Registrable Securities and, subject to Section 2(d) below, shall
include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein
within 20 days after the receipt of the Company's notice.
(b) Long-Form Registrations. The Holders of Investor
Registrable Securities shall be entitled to request two Long-Form
Registrations in which the Company shall pay all Registration Expenses
("Company-paid Long-Form Registrations"). A registration shall not
count as one of the permitted Company-paid Long-Form Registrations
until it has become effective, and neither the last nor any subsequent
Company-paid Long-Form Registration shall count as one of the permitted
Company-paid Long-Form Registrations unless the Holders of Investor
Registrable Securities are able to register and sell at least 75% of
the Investor Registrable Securities requested to be included in such
registration; provided, that in any event the Company shall pay all
Registration Expenses in connection with any registration initiated as
a Company-paid Long-Form Registration whether or not it has become
effective and whether or not such registration has counted as one of
the permitted Company-paid Long-Form Registrations hereunder; provided,
further, that the Holders of Investor Registrable Securities shall only
be entitled to two Long-Form Registrations regardless of whether the
Company or such Holder shall pay such Registration Expenses; and,
provided, further, that no registration shall count as a Company-paid
Long Form Registration if the Company offers for its own account its
securities under that registration or any other party with registration
rights offers securities held by that party under that registration.
(c) Short-Form Registrations. In addition to the Long-Form
Registration provided pursuant to Section 2(b) above, the Holders of
Investor Registrable Securities shall be entitled to request an
unlimited number of Short-Form Registrations in which the Company shall
pay all Registration Expenses. Demand Registrations shall be Short-Form
Registrations whenever the Company is permitted to use Form S-3 or any
other applicable short form. After the Company has become subject to
the reporting requirements of the Exchange Act, the Company shall use
its best efforts to make Short-Form Registrations on Form S-3 available
for the sale of Registrable Securities. The Company shall pay all
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Registration Expenses in connection with any registration initiated as
a Short-Form Registration whether or not it has become effective.
(d) Priority on Demand Registrations. The Company shall not
include in any Demand Registration any securities which are not
Registrable Securities without the prior written consent of the Holders
of at least 51% of the Investor Registrable Securities included in such
registration. If a Demand Registration is an underwritten offering and
the managing underwriters advise the Company in writing that in their
opinion the number of Registrable Securities and, if permitted
hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if
any, which can be sold in an orderly manner in such offering within a
price range acceptable to the Holders of at least 51% of the Investor
Registrable Securities included in such registration, the Company shall
so advise the Holders and include in such registration (i) first, the
Registrable Securities requested to be included in such registration
pro rata among the Holders of such Registrable Securities on the basis
of the number of Registrable Securities owned by each such Holder at
the time of filing of the registration statement and (ii) second, any
other securities to be sold by the Company or requested to be included
in such registration.
(e) Selection of Underwriters. If the Holders intend to
distribute the Registrable Securities covered by their request by means
of an underwriting, they shall so advise the Company as a part of their
request made pursuant to Section 2(a). In such event, if so requested
in writing by the Company, the Holders shall negotiate in good faith
with a nationally recognized underwriter or underwriters, or major
regional underwriter or underwriters acceptable to the Holders,
selected by the Company and reasonably satisfactory to the Holders with
regard to the underwriting of such requested registration; provided,
however, that if the Holders have not agreed with such underwriter(s),
in their discretion, as to the terms and conditions of such
underwriting within 30 days following commencement of such
negotiations, the Holders may select an underwriter or underwriters of
their choice.
(f) Other Registration Rights. Except as provided in this
Agreement, the Company shall not grant to any Person the right to
request the Company to register any Capital Stock (whether as a demand
registration or piggyback registration), or any securities convertible
or exchangeable into or exercisable for such Capital Stock, without the
prior written consent of the Holders of at least 51% of the Investor
Registrable Securities; provided, that the Company may grant rights to
other Person to participate in Piggyback Registrations so long as such
rights are subordinate to the rights of the Holders of Investor
Registrable Securities with respect to such Piggyback Registrations.
(g) Restrictions on Demand Registrations. The Company shall not
be obligated to effect any Demand Registration within 180 days after
the effective date of the Company's initial public offering of Common
Stock under the Securities Act or within 90 days (up to 30 days in the
case of clause (ii) below) after the effective date of a previous
Demand Registration or a previous registration in which the Holders of
Investor Registrable Securities were given piggyback rights pursuant
to Section 3 hereof. The Company may postpone for up to 90 days the
filing or the effectiveness of a registration statement for a Demand
Registration by delivering to the Holders a certificate executed by
the chief
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executive officer or president of the Company stating that the
Company's Board of Directors has determined in its reasonable good
faith judgment that such Demand Registration would reasonably be
expected to have (i) a material adverse effect on (or require
premature disclosure of) any proposal or plan by the Company to engage
in any acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer, reorganization
or similar transaction or (ii) a material adverse effect on the
Company's business or stock price; provided, that in such event, the
Holders of Investor Registrable Securities initially requesting such
Demand Registration shall be entitled to withdraw such request and, if
such request is withdrawn, such Demand Registration shall not count as
one of the permitted Demand Registrations hereunder and the Company
shall pay all Registration Expenses in connection with such
registration. The Company may delay a Demand Registration hereunder
only once in any twelve-month period.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes or
determines to register any of its securities under the Securities Act
for its own account or the account of any holder of the Company's
Securities (other than pursuant to a Demand Registration or a
registration on Form S-4 or Form S-8 or any successor or similar forms)
and the registration form to be used may be used for the registration
of Registrable Securities (a "Piggyback Registration"), the Company (i)
shall give prompt written notice to all Holders of Registrable
Securities of its intention to effect such a registration (y) at least
90 days before the initial filing of such registration if such
registration relates to the Company's initial public offering of
Capital Stock, or (z) 30 days before filing if such registration is a
subsequent registration and (ii) subject to Sections 3(c) and 3(d)
below, shall include in such registration all Registrable Securities
with respect to which the Company has received written requests for
inclusion therein within 20 days after the receipt of the Company's
notice. The notice referred to in this Section shall include a list of
the jurisdictions in which the Company intends to attempt to qualify
such securities under the applicable blue sky or other state securities
laws.
(b) Piggyback Expenses. The Registration Expenses of the
Holders of Registrable Securities shall be paid by the Company in all
Piggyback Registrations whether or not such registration is
consummated.
(c) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the
Company, and the managing underwriters advise the Company in writing
that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering,
the Company shall include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the Registrable
Securities requested to be included in such registration, pro rata
among the Holders of such Registrable Securities on the basis of
the number of Registrable Securities owned by each such Holder and
(iii) third, any other securities requested to be included in such
registration.
(d) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of
holders of the Company's securities (other
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than the Holders of Investor Registrable Securities), and the managing
underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration
exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company
shall include in such registration (i) first, the securities requested
to be included therein by the holders requesting such registration and
the Registrable Securities requested to be included in such
registration pro rata among the holders of such securities on the
basis of the number of securities owned by such other holders and the
Holders requesting to be included in such registration and (ii)
second, any other securities requested to be included in such
registration.
(e) Withdrawal by the Company. If, at any time after giving
written notice of its intention to register any of its securities as
set forth in Section 3(a) and prior to the effective date of such
registration statement filed in connection with such registration, the
Company's board of directors shall determine in its good faith judgment
for any reason not to register such securities, the Company may, at its
election, give written notice of such determination to each Holder of
Registrable Securities and thereupon shall be relieved of its
obligation to register any Registrable Securities in connection with
such registration (but not from its obligation to pay the Registration
Expenses in connection therewith as provided herein).
4. Holdback Agreements.
(a) No Holder of Registrable Securities shall effect any
public sale or distribution (including sales pursuant to Rule 144) of
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days
prior to and the 120-day period beginning on the effective date of the
Company's initial public offering of its Common Stock under the
Securities Act or during the seven days prior to and the 30-day period
beginning on the effective date of the next registered public offering
of the Company's Common Stock (except as part of such underwritten
registration), unless the underwriters managing the registered public
offering otherwise agree in writing.
(b) The Company (i) shall not effect any public sale or
distribution of its equity securities, or any securities convertible
into or exchangeable or exercisable for such securities, during the
seven days prior to and the 120-day period beginning on the effective
date of the Company's initial public offering of its Common Stock under
the Securities Act or during the seven days prior to and the 30-day
period beginning on the effective date of (A) the next registered
public offering of the Company's Common Stock and (B) any underwritten
Demand Registration or any underwritten Piggyback Registration in which
Registrable Securities are included (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or
any successor or similar form), unless the underwriters managing the
otherwiseagree, and (ii) shall cause each Holder of at least 2% of its
Common Stock, or any securities convertible into or exchangeable or
exercisable for Common Stock, purchased from the Company at any time
after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or distribution
(including sales pursuant to Rule 144) of any such securities during
such periods (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered
public offering otherwise agree in writing.
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5. Registration Procedures. Whenever the Holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to
cause such registration statement to become effective; provided that
before filing a registration statement or prospectus or any amendments
or supplements thereto, the Company shall (if requested) furnish to the
counsel selected by the Holders of at least 51% of the Investor
Registrable Securities covered by such registration statement copies of
all such documents proposed to be filed, which documents shall be
subject to the review and comment of such counsel;
(b) notify each Holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and,
prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith
as may be necessary to keep the registration statement effective for a
period of either (i) not less than 120 days or, if such registration
statement relates to an underwritten offering, such longer period as in
the opinion of counsel for the underwriters a prospectus is required by
law to be delivered in connection with sales of Registrable Securities
by any underwriter or dealer or (ii) such shorter period as will
terminate when all of the securities covered by such registration
statement have been disposed of in accordance with the intended methods
of disposition by the seller or sellers thereof as set forth in such
registration statement (but in any event not before the expiration of
any longer period required under the Securities Act), and to comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement
until such time as all such securities have been disposed of in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement and the
prospectus used in connection therewith;
(c) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and
supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as such seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as any seller (including any underwriter) reasonably
requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate
the disposition in such jurisdictions of the Registrable Securities
owned by such seller; provided, that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section, (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction;
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(e) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as a result of
which the prospectus included in such registration statement contains
an untrue statement of a material fact or omits any fact necessary to
make the statements therein not misleading, and, at the request of any
such seller, the Company shall prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus shall not contain an
untrue statement of a material fact or omit to state any fact necessary
to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company
are then listed and, if not so listed, to be listed on the NASD
automated quotation system and, if listed on the NASD automated
quotation system, use its best efforts to secure designation of all
such Registrable Securities covered by such registration statement as a
NASDAQ "national market system security" within the meaning of Rule
11Aa2-1 of the SEC or, failing that, to secure NASDAQ authorization for
such Registrable Securities and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as
such with respect to such Registrable Securities with the NASD;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
registration statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
actions as the Holders of at least 51% of the Investor Registrable
Securities being sold or the underwriters, if any, reasonably request
in order to expedite or facilitate the disposition of such Registrable
Securities (including effecting a stock split or a combination of
shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant
to such registration statement and any attorney, accountant or other
agent retained by any such seller or underwriter, all necessary
financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security Holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the
effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder;
(k) permit any Holder of Registrable Securities which Holder,
in its sole and exclusive judgment, might be deemed to be an
underwriter or a controlling person of the Company, to participate in
the preparation of such registration or comparable statement and
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to require the insertion therein of material, requested of the Company
in writing, which in the reasonable judgment of such Holder and its
counsel should be included;
(l) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any Common Stock included in such
registration statement for sale in any jurisdiction, the Company shall
use its best efforts promptly to obtain the withdrawal of such order;
(m) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the sellers thereof to consummate the disposition
of such Registrable Securities; and
(n) obtain a cold comfort letter from the Company's
independent public accountants in customary form and covering such
matters of the type customarily covered by cold comfort letters as the
Holders of at least 51% of the Investor Registrable Securities being
sold reasonably request.
6. Expenses of Registration. All expenses (collectively, the
"Registration Expenses") incident to or incurred in connection with any
performance of, compliance with, registration or qualification pursuant to this
Agreement, including, without limitation, all registration, filing, compliance,
blue sky, listing, and qualification fees and expenses, printing expenses,
messenger, courier and delivery expenses, fees and disbursements of custodians
fees and disbursements of counsel for the Company and the underwriters, fees and
expenses of one counsel chosen by the Holders of the Investor Registrable
Securities included in such registrations, fees and expenses of underwriter
(excluding discounts and commissions) and expenses and fees of accountants and
audits incidental to or required by such registration, shall be borne by the
Company; provided, however, that the Company shall not be required to pay
underwriters' discounts or commissions relating to Registrable Securities (such
underwriters' fees, discounts or commissions to be borne by the Holders, on a
pro rata basis, based on the number of shares of Registrable Securities sold by
each of them). For the avoidance of doubt, Registration Expenses do not include
the compensation of employees of the Company, which shall be paid in all events
by the Company.
7. Indemnification.
(a) The Company will indemnify each Holder of Registrable
Securities, each of the Holder's officers, directors, partners and
employees, and each person controlling such Holder and officers,
directors, partners and employees of any such controlling person, with
respect to such registration, compliance or qualification effected
pursuant to this Agreement and in which Registrable Securities of the
Holders are included, against all claims, losses, damages, and
liabilities (or actions in respect thereto) arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, registration statement, offering circular
or other document incident to any such registration, compliance or
qualification, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by the
Company of any rule or regulation promulgated pursuant to any Federal,
state or common law rule or regulation including, without limitation,
the
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Securities Act, applicable to the Company and relating to action or
inaction required of the Company in connection with any such
registration, qualification or compliance and will reimburse each such
Holder, each of the Holder's officers, directors, partners and
employees, and each person controlling such Holder and officers,
directors, partners and employees of any such controlling person, for
any legal and any other reasonable expenses incurred in connection with
investigating or defending any such claim, loss, damage, liability or
action, including reasonable attorneys' fees and expenses; provided,
however, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage or liability arises out of or
is based on any untrue statement or omission based upon and in
conformity with written information furnished to the Company by such
Holder in a signed document and stated to be specifically for use in
such registration statement. Such indemnity shall be effective
notwithstanding any investigation made by or on behalf of any Holder or
any such officer, director, partner, employee, or controlling person
and shall survive any transfer by the same of the Registrable
Securities.
(b) Each Holder will, if Registrable Securities held by or
issuable to such Holder are included in the securities as to which such
registration, compliance or qualification is being effected, indemnify
the Company, each of its directors, officers and employees, each person
who controls the Company, and each other such Holder, each of such
other Holder's officers, directors, partners and employees, and each
person controlling such other Holder, against all claims, losses,
damages and liabilities (or actions in respect thereto) arising out of
or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus,
offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse the Company, such Holders, such directors, officers,
partners, employees or persons for any legal or any other reasonable
expenses incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, including reasonable
attorneys' fees and expenses, in each case to the extent, but only to
the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such
such registration statement. Notwithstanding the foregoing, the
liability of any such Holder shall not exceed an amount equal to the
proceeds realized by each such Holder of Registrable Securities sold
in such registration. Such indemnity shall be effective
notwithstanding any investigation made by or on behalf of the Company,
any such director, officer, partner, employee, or controlling person
and shall survive the transfer of such securities by such Holder.
(c) Each party entitled to indemnification under this Section
7 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought. Unless in the reasonable judgment of the
Indemnified Party a conflict of interest may exist between the
Indemnifying Party and the Indemnified Party, the Indemnifying Party
shall be permitted to assume the defense of any such claim or any
litigation resulting therefrom; provided, however, that in any event
counsel for the Indemnifying Party or Indemnified Party who shall
conduct the defense of such claim or litigation as provided above shall
be approved by the other Party (which approval shall not
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be unreasonably withheld), and such other Party may participate in
such defense at such Party's expense; provided, further, that the
failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this
Section 7 except to the extent such failure shall have had a material
adverse effect on the Indemnifying Party's ability to defend such
claim.
(d) The Indemnified Party shall make no settlement of any claim
or litigation which would give rise to liability on the part of the
Indemnifying Party under any indemnity contained in this Section 7
without the written consent of the Indemnifying Party, which consent
shall not be unreasonably withheld or delayed, and no Indemnifying
Party shall make any settlement of any such claim or litigation
without the consent of the Indemnified Party, which consent shall not
be unreasonably withheld or delayed. If a firm offer is made to settle
a claim or litigation defended by the Indemnified Party and the
Indemnified Party notifies the Indemnifying Party in writing that the
Indemnified Party desires to accept and agree to such offer, but the
Indemnifying Party elects not to accept or agree to such offer within
ten days after receipt of written notice from the Indemnified Party of
the terms of such offer, then, in such event, the Indemnified Party
shall continue to contest or defend such claim or litigation and, if
such claim or litigation is within the scope of the Indemnifying
Party's indemnity contained in this Section 7, the Indemnified Party
shall be indemnified pursuant to the terms hereof. If a firm offer is
made to settle a claim or litigation defended by the Indemnifying
Party (and such firm offer does not include an admission or
performance by the Indemnified Party) and the Indemnifying Party
notifies the Indemnified Party in writing that the Indemnifying Party
desires to accept and agree to such offer, but the Indemnified Party
elects not to accept or agree to such offer within ten days after
receipt of written notice from the Indemnifying Party of the terms of
such offer, then, in such event, the Indemnified Party may continue to
contest or defend such claim or litigation and, in such event, the
total maximum liability of the Indemnifying Party to indemnify or
otherwise reimburse the Indemnified Party in accordance with this
Agreement with respect to such claim or litigation shall be limited to
and shall not exceed the amount of such settlement offer, plus
reasonable out-of-pocket costs and expenses (including reasonable fees
and disbursements of counsel) to the date of notice that the
Indemnifying Party desired to accept such settlement offer.
(e) The indemnification payments required pursuant to this
Section 7 for expenses of the investigation or defense of a claim or
lawsuit shall be made from time to time during the course of the
investigation or defense, as the case may be, upon submission of
reasonably sufficient documentation that any such expenses have been
incurred.
(f) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by this Paragraph 7 are
unavailable to or insufficient to hold harmless an Indemnified Party in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each Indemnifying Party
shall contribute to the amount paid or payable by such Indemnified
Party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party and the
Indemnified Party in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by
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reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state
a material fact related to information supplied by such Indemnifying
Party or by such Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not
be just and equitable if contributions pursuant to this Section 7(f)
were determined by pro rata allocation (even if the Holders or any
agents or underwriters or all of them were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section
7(f). The amount paid or payable by an Indemnified Party as a result
of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any reasonable
legal or other fees or expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
7(f), no Holder shall be required to contribute any amount in excess
of the amount by which the dollar amount of the net proceeds received
by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto)
exceeds the amount of any damages which such holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission, and no underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Holders' and
any underwriters' obligations in this Section 7(f) to contribute shall
be several in proportion to the principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and
not joint.
8. Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
written information regarding such Holder or Holders and the distribution
proposed by such Holder or Holders as the Company may reasonably request in
writing and as shall be required in connection with any registration or
qualification referred to in this Agreement. The Company agrees to include in
any such registration statement all information concerning the Holders and their
distribution which the Holders shall reasonably request.
9. Filing of Reports Under The Exchange Act. The Company shall give
prompt notice to the Holders of (a) the filing of any Exchange Act Registration
Statement relating to any class of equity securities of the Company, and (b) the
effectiveness of such Exchange Act Registration Statement, in order to enable
the Holders to comply with any reporting requirements under the Exchange Act or
the Securities Act. The Company shall, at any time after the Company shall
register any shares of Common Stock under the Securities Act and upon the
written request of the Holders, file an Exchange Act Registration Statement
relating to any class of equity securities of the Company then held by the
Holders or issuable upon conversion or exercise of any class of debt or equity
securities or warrants or options of the Company then held by the Holders,
whether or not the class of equity securities with respect to which such request
is made shall be held by at least the
12
number of persons which would require the filing of a registration
statement under Section 12(g)(1) of the Exchange Act.
10. Rule 144 Reporting. With a view to making available to the
Holders benefits of certain rules and regulations of the SEC which may permit
the sale of the Shares to the public without registration, the Company agrees
to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, or
any successor provision thereto, at all times;
(b) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act;
(c) so long as a Holder owns any Shares (or other securities of
the Company), to furnish to such Holder forthwith upon its request a
written statement by the Company as to the Company's compliance with
the reporting requirements of Rule 144 and of the Securities Act and
the Exchange Act, a copy of the most recent annual or quarterly report
of the Company, and such other reports and documents so filed by the
Company as such Holder may reasonably request in availing itself of
any rule or regulation of the SEC allowing such Holder to sell any
such securities without registration; and
(d) take any further action reasonably requested by a Holder
to enable such Holder to sell its Registrable Securities without
registration under Rule 144, under any successor provision, or any
similar rule or regulation promulgated by the SEC from time to time.
11. Transfer of Registration Rights. The rights to cause the
Company to register Registrable Securities that are granted by the Company under
Sections 2 and 3 may be assigned by a Holder to one or more transferees or
assignees of any of its Registrable Securities; provided, however, that the
Company is given written notice by the Holder at the time of or within a
reasonable time after the transfer, stating the name and address of the
transferee or assignee and identifying the securities with respect to which such
registration rights are being assigned. Subject to the foregoing provision, this
Agreement shall be binding upon, and inure to the benefit of, the parties hereto
and their respective successors and assigns; provided, further, that the
registration rights granted in this Agreement shall not be transferred to
persons who received Registrable Securities pursuant to a registration statement
under the Securities Act or pursuant to a transaction under Rule 144 or any
successor provision thereto.
12. Changes. The terms and provisions of this Agreement may not be
modified or amended, except that they may be modified or amended with the
written consent of (a) the Company and (b) the Holders of a majority of the
Shares outstanding. None of the terms and provisions of this Agreement may be
waived except in writing by the person so waiving.
13. Granting of Registration Rights. The Company shall not, without
the prior written consent of Holders of 51% of the Shares then outstanding which
have not already been registered, grant any rights to any persons to register
any shares of Capital Stock or other securities of the
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Company if such rights could reasonably be expected to conflict with, or be on
parity with, the rights of the Holders of the Shares.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina, with
regards to conflicts of laws provisions.
15. Notice. All notices and other communications required or
permitted to be given in respect of this Agreement shall be sent by personal
delivery, nationally recognized overnight courier, facsimile or certified or
registered mail, to the following parties at the following addresses, or, in
each case, at such other address or addresses as any party shall hereafter
specify by written notice to the others:
(i) To the Company at:
Access Worldwide Communications
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxx & Xxxxxx
0000 Xxxxx Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
(ii) To the Agent at:
Bank of America, N.A.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx & Xxx Xxxxx, PLLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
14
(iii) To the following Lenders at:
Fleet National Bank
502 Carnegie Center
Mail Stop: NJRP 44802B
Xxxxxxxxx, XX 00000
Attn: Mr. Xxxxxxx Xxxx
Facsimile No.: (000) 000-0000
with a copy to:
FSC Corp.
c/o Bank Boston Capital
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
ARK CLO 2000-1, Limited
c/o Patriarch Partners, LLC
00 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx/Xxxxxx Xxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Woodside Capital
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
European American Bank
0 XXX Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxx
Facsimile No.: (000) 000-0000
Any notice required to be given hereunder by one party to another shall be
deemed to have been received (a) when delivered, if personally delivered or sent
via facsimile, (b) one day following delivery to a nationally recognized
overnight courier or (c) on the third business day following the date on which
the piece of mail containing such communication is posted, if sent by certified
or registered mail.
15
16. Termination. This Agreement shall terminate with respect to
any Holder on the later of the date on which the Holder may sell the Shares
pursuant to Rule 144(k) under the Securities Act.
17. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and which together shall constitute a
single agreement.
18. Headings. The headings of the Sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute a part
hereof.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed by their authorized officers as of the day and year first above
written.
ACCESS WORLDWIDE COMMUNICATIONS, INC.,
a Delaware corporation
By:
--------------------------------------
Name:
Title:
17
LENDERS: BANK OF AMERICA, N.A., successor to
-------
NationsBank, N.A., individually in its
capacity as a Lender and in its capacity
as Agent
By:
--------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By:
--------------------------------------
Name:
Title:
ARK CLO 2000-1, LIMITED
By: Patriarch Partners, LLC,
Its Collateral Manager
By:
--------------------------------------
Name:
Title:
EUROPEAN AMERICAN BANK
By:
--------------------------------------
Name:
Title:
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