EXHIBIT 2
EXECUTION COPY
STOCKHOLDERS AGREEMENT
BY AND AMONG
AEGIS COMMUNICATIONS GROUP, INC.,
CERTAIN STOCKHOLDERS
AS IDENTIFIED HEREIN,
DEUTSCHE BANK AG -- LONDON ACTING THROUGH
DB ADVISORS, LLC AS INVESTMENT ADVISOR,
AND
ESSAR GLOBAL LIMITED
DATED AS OF NOVEMBER 5, 2003
TABLE OF CONTENTS
Page
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1. SALES TO THIRD PARTIES...................................................................................1
1.1 SALES TO THIRD PARTIES..........................................................................1
1.2 RIGHT OF FIRST OFFER............................................................................1
1.3 INVOLUNTARY TRANSFERS...........................................................................2
2. ELECTION OF DIRECTORS....................................................................................3
2.1 BOARD MAKE-UP...................................................................................3
2.2 IRREVOCABLE PROXY...............................................................................3
2.3 MAJOR DECISIONS.................................................................................4
3. STOCK CERTIFICATE LEGEND.................................................................................5
4. COVENANTS; REPRESENTATIONS AND WARRANTIES................................................................6
4.1 NO OTHER ARRANGEMENTS OR AGREEMENTS.............................................................6
4.2 ADDITIONAL REPRESENTATIONS AND WARRANTIES.......................................................7
4.3 AFFILIATE TRANSACTIONS..........................................................................7
4.4 PREFERRED STOCK CONVERSION......................................................................7
5. AMENDMENT AND MODIFICATION...............................................................................8
6. PARTIES..................................................................................................8
6.1 ASSIGNMENT BY THE COMPANY.......................................................................8
6.2 ASSIGNMENT GENERALLY............................................................................8
6.3 TERMINATION.....................................................................................8
6.4 AGREEMENTS TO BE BOUND..........................................................................9
7. RECAPITALIZATIONS, EXCHANGES, ETC........................................................................9
8. FURTHER ASSURANCES.......................................................................................9
9. GOVERNING LAW............................................................................................9
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10. INVALIDITY OF PROVISION..................................................................................9
11. WAIVER..................................................................................................10
12. NOTICES.................................................................................................10
13. HEADINGS; EXECUTION IN COUNTERPART......................................................................11
14. COUNTERPARTS............................................................................................11
15. ENTIRE AGREEMENT........................................................................................11
16. INJUNCTIVE RELIEF.......................................................................................11
17. MISCELLANEOUS...........................................................................................12
18. DEFINED TERMS...........................................................................................12
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This STOCKHOLDERS AGREEMENT (this "Agreement"), is
made effective as of November 5, 2003, by and among Aegis Communications Group,
Inc., a Delaware corporation (the "Company"), Questor Partners Fund II, L.P., a
Delaware limited partnership ("Fund II"), Questor Side-by-Side Partners II,
L.P., a Delaware limited partnership (the "Side-By-Side Fund"), Questor
Side-by-Side Partners II 3(c)(1), L.P., a Delaware limited partnership (the
"3(C)(1) Fund", and together with Fund II and the Side-by-Side Fund, "Questor"),
Xxxxxx Equity Investors III, L.P., a Delaware limited partnership ("Xxxxxx
Equity"), TC Co-Investors, LLC, a Delaware limited liability company ("TC
Co-Investors", and together with Xxxxxx Equity, "Xxxxxx" and together with
Questor, the "Existing Stockholders"), Deutsche Bank AG -- London acting through
DB Advisors, LLC as investment advisor ("DB") and Essar Global Limited ("Essar")
(DB and Essar, collectively, the "New Stockholders"). The Existing Stockholders
and New Stockholders are herein referred to collectively as the "Stockholders."
Capitalized terms used herein without definition are defined in Section 18.
The parties hereto agree as follows:
1. SALES TO THIRD PARTIES.
1.1 SALES TO THIRD PARTIES. Any Stockholder may
Transfer all or a portion of its Equity Securities to a third party, provided
that such Transfer is made in compliance with the provisions of Section 1.2
(Right of First Offer) and Section 6.4 (Agreements to Be Bound). Any Stockholder
may Transfer all or a portion of its Equity Securities to an Affiliate, provided
that such Transfer is made in compliance with Section 6.4 (Agreements to Be
Bound). For the purposes of Section 1.2, a Transfer to a "third party" shall not
include a Transfer to any New Stockholders Assignee or Existing Stockholders
Assignee or a Transfer in a Public Sale (it being understood that there shall be
no restriction on any Transfer in a Public Sale).
1.2 RIGHT OF FIRST OFFER. (a) PROCEDURE. If any
Existing Stockholder (the "Selling Stockholder") desires to Transfer any Equity
Securities (other than any Transfers referred to in the second or final sentence
of Section 1.1), then prior to Transferring such Equity Securities to any third
party or parties, the Selling Stockholder shall deliver to each of the New
Stockholders a letter (the "Sale Notice") signed by it setting forth:
(i) the number of Equity Securities such Selling Stockholder
wishes to Transfer;
(ii) the material terms and conditions on which such Selling
Stockholder wishes to Transfer such shares, including, without limitation, the
purchase price per security of Equity Securities; and
(iii) such Selling Stockholder's offer (irrevocable by its
terms for 15 days following receipt) to Transfer to the New Stockholders all
(but not less than all) of such Equity Securities, for a purchase price and on
the other terms and conditions set forth in subparagraph (ii) of this Section
1.2(a).
Within 15 days of receipt of the Sale Notice, the New
Stockholders may agree to purchase in the aggregate all of the Equity Securities
covered by the Sale Notice, and
(A) individually, that portion of such Equity Securities offered by the Selling
Stockholder equal to their pro rata interest in the Company relative to each
other (based on the percentage of outstanding Common Stock Equivalents owned by
each of them on the date of the Sale Notice), (B) such other portion of such
Equity Securities as the New Stockholders may agree upon or (C) in the event
either of the New Stockholders does not exercise such right, all of the Equity
Securities offered to such declining New Stockholder by the Selling Stockholder
in amounts determined pursuant to subclause (A) or (B) above without regard to
such declining New Stockholders, by delivering written notice to such effect to
the Selling Stockholder setting forth closing arrangements and a closing date
not less than 30 nor more than 90 days following the delivery of such notice (or
such later date as is necessary to obtain all requisite governmental and
regulatory approvals and consents).
(b) EFFECTING SALES. If, upon the expiration of 15
days following receipt by the New Stockholders of the Sale Notice, none of the
New Stockholders shall have agreed to purchase all of the Equity Securities
covered by the Sale Notice, the Selling Stockholder may sell to a third party or
parties all, but not less than all, of the Equity Securities covered by the Sale
Notice for at least 95% of the price and upon substantially the same other terms
and conditions as contained in the Sale Notice; provided that the Selling
Stockholder and the third party execute a binding purchase agreement (subject to
customary closing conditions) within 90 days after the expiration of such 15 day
period and consummate the closing thereunder within 120 days (or such later date
as is necessary to obtain all requisite governmental and regulatory approvals
and consents) from the execution of the binding purchase agreement. If the New
Stockholders shall have agreed to purchase the Equity Securities covered by the
Sale Notice, then the sale of such Equity Securities shall be consummated as
soon as practicable after the delivery of a notice of acceptance by the Selling
Stockholder, but in any event within 90 days of the delivery of the Sale Notice
(or such later date as is necessary to obtain all requisite governmental and
regulatory approvals and consents). The New Stockholders shall have the right to
assign to one or more New Stockholders Assignees all or any of their rights to
purchase Equity Securities pursuant to this Section 1.2.
(c) Notwithstanding anything to the contrary herein,
the rights granted to and obligations imposed on the New Stockholders and the
New Stockholders Assignees, on the one hand, and the Existing Stockholders and
the Existing Stockholders Assignees, on the other hand, pursuant to this Section
1.2 shall terminate upon the third anniversary of the date of this Agreement.
(d) This Section 1.2 shall apply mutatis mutandis
hereto, as if one New Stockholder, on the one hand, and the other New
Stockholder, on the other hand, were the Selling Stockholder and the New
Stockholders, respectively; provided, that for the avoidance of doubt, the New
Stockholder that is a Selling Stockholder shall be deemed to have declined its
own offer for purposes of Section 1.2(a).
1.3 INVOLUNTARY TRANSFERS. Any transfer of title or
beneficial ownership of Equity Securities upon default, foreclosure, forfeit,
divorce, court order or otherwise than by a voluntary decision on the part of a
Stockholder (each, an "Involuntary Transfer") shall be void unless the
Stockholder complies with this Section 1.3 and enables the Company to exercise
in full its rights hereunder. Upon any Involuntary Transfer, the Company
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shall have the right to purchase such Equity Securities pursuant to this Section
1.3 and the person or entity to whom such Equity Securities have been
Transferred (the "Involuntary Transferee") shall have the obligation to sell
such Equity Securities in accordance with this Section 1.3. Upon the Involuntary
Transfer of any Equity Securities, such Stockholder shall promptly (but in no
event later than two days after such Involuntary Transfer) furnish written
notice (the "Notice") to the Company indicating that the Involuntary Transfer
has occurred, specifying the name of the Involuntary Transferee, giving a
detailed description of the circumstances giving rise to, and stating the legal
basis for, the Involuntary Transfer. Upon the receipt of the Notice, and for 60
days thereafter, the Company shall have the right to purchase, and upon exercise
of such right the Involuntary Transferee shall have the obligation to sell, all
(but not less than all) of the Equity Securities acquired by the Involuntary
Transferee for a purchase price equal to the Market Value of such Equity
Securities.
2. ELECTION OF DIRECTORS.
2.1 BOARD MAKE-UP. (a) Each Stockholder agrees that
from and after the Closing such Stockholder will use his, her or its best
efforts to nominate and elect and will vote all of the Equity Securities owned
or held of record by him, her or it that have voting rights to elect and,
thereafter for such period, to continue in office a Board consisting of ten
members, three of whom shall be designated by DB (the "DB Designees"), three of
whom shall be designated by Essar (the "Essar Designees"), one of whom shall be
the President and Chief Executive Officer and three of whom shall be independent
of DB, Essar and the Company. The persons designated pursuant to this Section
2.1 by DB and Essar may be changed from time to time by DB and Essar,
respectively. If the directors are to be elected in staggered terms, the number
of nominees designated by DB and Essar for each such term shall equal the total
number of DB Designees or Essar Designees, respectively, divided by the number
of such terms and rounded up to the nearest whole number.
(b) The number of DB Designees and Essar Designees
will be subject to reduction as provided in this Section 2.1(b). With respect to
DB or Essar, respectively, upon the occurrence of (i) the First Break Point with
respect to DB or Essar, as the case may be, the number of DB Designees or Essar
Designees, respectively, will be reduced to two such designees, (ii) the Second
Break Point with respect to DB or Essar, as the case may be, the number of DB
Designees or Essar Designees, respectively, will be reduced to one such designee
and (iii) the Third Break Point with respect to DB or Essar, as the case may be,
the number of DB Designees or Essar Designees, respectively, will be reduced to
zero such designees. As soon as practicable after the occurrence of any
reduction in the number of DB Designees or Essar Designees, respectively,
pursuant to clauses (i), (ii) or (iii) in the immediately preceding sentence, DB
or Essar, respectively, shall use reasonable best efforts to cause the
resignation of the number of DB Designee(s) or Essar Designee(s), respectively,
in excess of the number of DB Designees or Essar Designees, respectively, that
it is entitled to designate pursuant to this Section 2.1(b). For the avoidance
of doubt, except as explicitly indicated in this Section 2.1(b), Section 2.1(a)
shall remain in full force, including the obligations of each party to vote for
the directors that such other party is entitled to designate.
2.2 IRREVOCABLE PROXY. In order to effectuate Section
2.1 and, in addition to and not in lieu of Section 2.1, each Stockholder hereby
grants to the Secretary of the
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Company then in office an irrevocable proxy solely for the purpose of voting all
of the Equity Securities that have voting rights and owned by the grantor of the
proxy for the election of directors nominated only in accordance with Section
2.1.
2.3 MAJOR DECISIONS. (a) Each Stockholder agrees that
from and after the Closing such Stockholder will use his, her or its best
efforts, and, where applicable, will vote all of the Equity Securities owned or
held of record by him, her or it that have voting rights, to cause the By-laws
of the Company to require that (i) at all meetings of the Board a majority of
the number of directors shall constitute a quorum for the transaction of
business; provided that such majority of directors include at least one
independent director (so long as there is more than one independent director
serving on the board), at least one DB Designee and at least one Essar Designee
unless and until the Third Break Point occurs with respect to DB or Essar, as
the case may be, (ii) any committee of the Board be constituted so that the
number of DB Designees and Essar Designees on any such committee be as nearly as
possible in the same proportion as the number of DB Designees and Essar
Designees on the entire Board unless prohibited by applicable law or listing
standards; provided that any committee of the Board shall at all times have a
minimum of one DB Designee and one Essar Designee, unless and until the Third
Break Point occurs with respect to DB or Essar, as the case may be and (iii) any
Major Decision (as defined below) be approved by the affirmative vote of not
less than three-fourths of the directors then serving on the Board; provided
that, unless and until the First Break Point occurs, such Major Decision also be
approved by each of at least one DB Designee and at least one Essar Designee.
(b) The term "Major Decision" means any decision by
the Board with respect to any of the following matters:
(i) issuing any shares or any security, including any
indebtedness, convertible into shares, or any other form of
equity in the Company or any subsidiary of the Company, other
than (A) granting options to directors or employees of the
Company pursuant to any incentive or other benefit plan
adopted by the Board, (B) issuing shares of Common Stock
pursuant to the exercise of such options or any other
securities outstanding on the date hereof and (C) issuing
shares of Common Stock or any security, including any
indebtedness, convertible into shares of Common Stock, or any
other form of equity in the Company, in one or more offerings
(excluding any issuances referred to in (A) or (B) above);
(ii) adoption of any stock-based employee benefit
plan;
(iii) incurring indebtedness or entering into
guarantees for borrowed money (excluding trade payables
incurred in the ordinary course of business) in excess of
$2,500,000 in any twelve consecutive month period, provided,
however, that the Board may approve pursuant to this Section
2.3(b)(iii) a revolving credit or similar borrowing facility
together with subsequent draw-downs under such facility
without obtaining separate Board approval for each such
draw-down;
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(iv) selling, leasing, pledging or granting a
security interest or encumbrance in all or substantially all
of the Company's or any subsidiary of the Company's assets,
except in connection with the incurrence of indebtedness for
borrowed money that does not involve a Major Decision under
the preceding paragraph;
(v) acquiring (whether through an asset purchase,
merger, equity purchase or otherwise) any assets (excluding
acquisitions of raw materials and supplies in the ordinary
course of business) having a value, individually or in the
aggregate for any series of related transactions, in excess of
$2,000,000;
(vi) selling or otherwise disposing of any assets
(excluding sales or other dispositions of inventory in the
ordinary course of business) having a value, individually or
in the aggregate for any series of related transactions, in
excess of $2,000,000;
(vii) amending the By-laws or the Certificate of
Incorporation of the Company;
(viii) any Change in Control Transaction;
(ix) executing or delivering any assignment for the
benefit of creditors of the Company;
(x) filing any voluntary petition in bankruptcy or
receivership with respect to the Company;
(xi) taking any action while there is a vacancy on
the Board, including without limitation the filling of such
vacancy except in accordance with the terms of this Agreement;
or
(xii) changing the size or composition of the Board
except in accordance with this Agreement.
3. STOCK CERTIFICATE LEGEND. A copy of this Agreement
shall be filed with the Secretary of the Company and kept with the records of
the Company. Each certificate representing shares of Common Stock owned by the
Stockholders shall bear upon its face the following legends, as appropriate:
(i) "THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE
BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE
OFFERED, SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS AND UNTIL REGISTERED UNDER
THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR UNLESS, IN THE OPINION OF COUNSEL TO
THE STOCKHOLDER,
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WHICH COUNSEL MUST BE, AND THE FORM AND
SUBSTANCE OF WHICH OPINION ARE, REASONABLY
SATISFACTORY TO THE ISSUER, SUCH OFFER, SALE,
ASSIGNMENT, PLEDGE, HYPOTHECATION, TRANSFER OR
OTHER DISPOSITION IS EXEMPT FROM REGISTRATION
OR IS OTHERWISE IN COMPLIANCE WITH THE ACT AND
SUCH LAWS."
(ii) "THE SHARES OF STOCK REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AND OTHER CONDITIONS, AS SPECIFIED IN
THE STOCKHOLDERS' AGREEMENT OF THE ISSUER
DATED AS OF NOVEMBER 5, 2003 (THE
"STOCKHOLDERS' AGREEMENT"), COPIES OF WHICH
ARE ON FILE AT THE OFFICE OF THE ISSUER AND
WILL BE FURNISHED WITHOUT CHARGE TO THE HOLDER
OF SUCH SHARES UPON WRITTEN REQUEST AND MAY
NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS, IN THE OPINION OF COUNSEL
TO THE STOCKHOLDER, WHICH COUNSEL MUST BE, AND
THE FORM AND SUBSTANCE OF SUCH OPINION ARE,
REASONABLY SATISFACTORY TO THE ISSUER, SUCH
OFFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION, TRANSFER OR OTHER DISPOSITION
IS IN COMPLIANCE WITH THE STOCKHOLDERS'
AGREEMENT."
In addition, certificates representing shares of Common Stock owned by residents
of certain states shall bear any legends required by the laws of such states.
All Stockholders shall be bound by the requirements of such legends.
4. COVENANTS; REPRESENTATIONS AND WARRANTIES.
4.1 NO OTHER ARRANGEMENTS OR AGREEMENTS. Each Stockholder
hereby represents and warrants to the Company and to each other Stockholder that
he or she has not entered into or agreed to be bound by any other arrangements
or agreements of any kind that conflict with this Agreement. Each Stockholder
agrees that, except as expressly permitted under this Agreement, he, she or it
will not enter into any such other arrangements or agreements as he, she or it
has represented and warranted to above with any other party as long as any of
the terms of this Agreement, the Note and Warrant Purchase Agreement and the
Registration Rights Agreement remain in effect. Upon the execution of this
Agreement, each of the Stockholders and Voting Agreement dated as of August 25,
1999 among Questor and the stockholders listed on Schedule A thereto and the
Stockholders Agreement dated December 10, 1999 among Questor, Xxxxxx and the
Company shall terminate and have no further force and effect whatsoever.
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4.2 ADDITIONAL REPRESENTATIONS AND WARRANTIES. (a) Each
Stockholder represents and warrants to the Company and each other Stockholder
that:
(i) such Stockholder has the power, authority and capacity
(or, in the case of any Stockholder that is a corporation, trust or limited
partnership, all corporate, trust or limited partnership power and authority, as
the case may be) to execute, deliver and perform this Agreement;
(ii) in the case of a Stockholder that is a corporation, trust
or limited partnership, the execution, delivery and performance of this
Agreement by such Stockholder has been duly and validly authorized and approved
by all necessary corporate, trust or limited partnership action, as the case may
be;
(iii) this Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes a valid and legally binding
obligation of such Stockholder, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting or relating to creditors' rights generally and general principles
of equity; and
(iv) the execution, delivery and performance of this Agreement
by such Stockholder does not and will not violate the terms of or result in the
acceleration of any obligation under (A) any material contract, commitment or
other material instrument to which such Stockholder is a party or by which such
Stockholder is bound or (B) in the case of a Stockholder that is a corporation,
trust or limited partnership, the certificate of incorporation, certificate of
limited partnership, by-laws, limited partnership agreement or other
organizational documents, as the case may be.
4.3 AFFILIATE TRANSACTIONS. Each of the New
Stockholders hereby agrees not to, and to cause each of its Affiliates not to,
engage in any transaction with the Company or any subsidiary or Affiliate of the
Company unless each such transaction is on terms that could be obtained on an
arm's length, commercially reasonable basis from unrelated parties.
4.4 PREFERRED STOCK CONVERSION. (a) As of the date
hereof, Questor agrees to and hereby does convert (i) 9,058.42 shares of Series
E Preferred Stock of the Company, representing all of its Series E Preferred
Stock immediately prior to such conversion, into 381,407.11 shares of Common
Stock of the Company in accordance with the conversion rate set forth in the
certificate of designation governing the Series E Preferred Stock and (ii)
23,375 shares of Series F Preferred Stock of the Company, representing 50% of
Questor's Series F Preferred Stock immediately prior to such conversion, into
34,527,594.305 shares of Common Stock of the Company in accordance with the
conversion rate set forth in the certificate of designation governing the Series
F Preferred Stock. As of the Subsequent Closing Date (as defined in the Purchase
Agreement) Questor agrees to and will convert its remaining 23,375 shares of
Series F Preferred Stock of the Company into 46,910,503 shares of Common Stock
of the Company in accordance with the conversion rate set forth in the
then-effective certificate of designation governing the Series F Preferred
Stock, subject to completion of the Preferred Stock Amendment (as defined in the
Purchase Agreement) and the satisfaction of the Xxxxxx Condition (as defined in
the Purchase Agreement).
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(b) Questor hereby waives all of its rights under the
certificate of designations of the Series F Preferred Stock other than the
rights set forth in Sections 6(a), 7(a) through (c), 7(e), 7(f), 7(i) through
(j), and 7(p) through (t). The Company hereby agrees with Questor to complete
and cause to become effective the Preferred Stock Amendment (as defined in the
Purchase Agreement). Xxxxxx hereby agrees with Questor to cause the Xxxxxx
Condition (as defined in the Purchase Agreement) to be satisfied. If the Company
changes (or establishes a record date for changing) the number of shares of
Common Stock issued and outstanding prior to the Subsequent Closing Date (as
defined in the Purchase Agreement) as a result of a stock split, stock dividend,
recapitalization, subdivision, reclassification, combination, exchange of shares
or similar transaction with respect to the outstanding shares of Common Stock,
then the number of shares into which the Series F Preferred (as defined in the
Purchase Agreement) shall be convertible pursuant to the Preferred Stock
Amendment shall be appropriately adjusted to preserve the percentage ownership
of the Common Stock that the holders of the Series F Preferred would otherwise
obtain if the Preferred Stock Amendment were effected and the Series F Preferred
outstanding immediately after the Closing were converted on the date hereof.
5. AMENDMENT AND MODIFICATION. This Agreement may not
be amended, modified or supplemented except by a written instrument signed by
each of the parties hereto and, in the case of an amendment, modification or
supplement that would materially and adversely affect any other Stockholder, any
such other Stockholder. The Company shall notify all Stockholders promptly after
any such amendment, modification or supplement shall have taken effect.
6. PARTIES.
6.1 ASSIGNMENT BY THE COMPANY. If the Company has not
exercised in full its right to purchase Equity Securities pursuant to Section
1.3 within 30 days of receipt by the Company of the Notice giving rise to such
right, then the New Stockholders (other than any New Stockholders subject to
such Involuntary Transfer) shall have the right to require the Company to assign
to such New Stockholders such right to purchase those Equity Securities not
being purchased by the Company. The New Stockholders shall have the right to
assign to one or more of the New Stockholders Parties all or any of their rights
to purchase Equity Securities pursuant to this Section 6.1.
6.2 ASSIGNMENT GENERALLY. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors and assigns,
provided that the Company may not assign any of its rights or obligations
hereunder without the consent of the New Stockholders and provided, further,
that no Stockholder may assign any of its rights or obligations hereunder
without the prior written consent of the New Stockholders, unless such
assignment is in connection with a Transfer explicitly permitted by this
Agreement and, prior to such assignment, such assignee complies with the
requirements of Section 6.4.
6.3 TERMINATION. Any party to, or person who is
subject to, this Agreement which ceases to own Equity Securities or any interest
therein, shall cease to be a party to, or person who is subject to, this
Agreement and thereafter shall have no rights or obligations hereunder,
provided, however, that a Transfer of Equity Securities not explicitly
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permitted under this Agreement shall not relieve a Stockholder of any of his or
her obligations hereunder. Notwithstanding the foregoing, in connection with a
Transfer to an Affiliate explicitly permitted by this Agreement, prior to any
such Person ceasing to be an Affiliate of the Stockholder from whom such Person
acquired its Equity Securities, such Person shall be obligated to transfer such
Equity Securities back to such original Stockholder and such original
Stockholder shall thereupon again be subject to this Agreement. Notwithstanding
any other provision in this Agreement, this Agreement shall terminate and be of
no further force or effect at such time as each of the New Stockholders Parties
beneficially own less than 5% of the outstanding Equity Securities.
6.4 AGREEMENTS TO BE BOUND. Notwithstanding anything
to the contrary contained in this Agreement, any Transfer of Equity Securities
by a Stockholder (other than pursuant to a Public Sale) shall be permitted under
the terms of this Agreement only if the transferee of such Stockholder shall
agree in writing to be bound by the terms and conditions of this Agreement
pursuant to an instrument of assumption reasonably satisfactory in substance and
form to the New Stockholders, and, in the case of a transferee who is an
individual and who resides in a state with a community property system, such
transferee causes his or her spouse, if any, to execute a Spousal Waiver in the
form of Exhibit A attached hereto. Upon the execution of the instrument of
assumption by such transferee and, if applicable, the Spousal Waiver by the
spouse of such transferee, such transferee shall have the rights and be subject
to all of the restrictions and obligations of his or her transferor hereunder.
7. RECAPITALIZATIONS, EXCHANGES, ETC. Except as
otherwise provided herein, the provisions of this Agreement shall apply to the
full extent set forth herein with respect to (A) the Equity Securities and (B)
any and all shares of capital stock of the Company or any successor or assign of
the Company (whether by merger, consolidation, sale of assets or otherwise)
which may be issued in respect of, in exchange for, or in substitution for the
Equity Securities by reason of any stock dividend, split, reverse split,
combination, recapitalization, reclassification, merger, consolidation or
otherwise. All share numbers and percentages shall be proportionately adjusted
to reflect any stock split, stock dividend or other subdivision or combination
effected after the date hereof. Except as otherwise provided herein, this
Agreement is not intended to confer upon any person, except for the parties
hereto, any rights or remedies hereunder.
8. FURTHER ASSURANCES. Each party hereto 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 any other party hereto or person subject hereto 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.
9. GOVERNING LAW. This Agreement and the rights and
obligations of the parties hereunder and the persons subject hereto shall be
governed by, and construed and interpreted in accordance with, the laws of the
State of Delaware, without giving effect to the choice of law principles
thereof.
10. INVALIDITY OF PROVISION. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability
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of the remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any other
jurisdiction.
11. WAIVER. Waiver by any party hereto of any breach
or default by the other party of any of the terms of this Agreement shall not
operate as a waiver of any other breach or default, whether similar to or
different from the breach or default waived. No waiver of any provision of this
Agreement shall be implied from any course of dealing between the parties hereto
or from any failure by either party to assert its or his or her rights hereunder
on any occasion or series of occasions.
12. NOTICES. All notices, requests, demands, waivers
and other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (A) delivered
personally, (B) mailed, certified or registered mail with postage prepaid, (C)
sent by next-day or overnight mail or delivery or (D) sent by fax, as follows
(or to such other address as the party entitled to notice shall hereafter
designate in accordance with the terms hereof):
(i) If to the Company, to it at:
Aegis Communications Group, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Chief Executive Officer
with a copy to Questor and Xxxxxx at their addresses
set forth below.
(ii) If to Xxxxxx, to it at:
Xxxxxx Capital Management Partners
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X.
Fax: (000) 000-0000
Attention:
(iii) If to Questor, to it at:
c/o Organization Services, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
With a copy to:
Questor Management Company
10
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: President
(iv) if to the New Stockholders:
DB Advisors, LLC
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile:
Attention:
Essar Global Limited
000 Xxxx 00xx Xxxxxx (XX)
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention:
All such notices, requests, demands, waivers and other communications shall be
deemed to have been received (A) if by personal delivery on the day after such
delivery, (B) if by certified or registered mail, on the fifth business day
after the mailing thereof, (C) if by next-day or overnight mail or delivery, on
the day delivered, or (D) if by fax, on the next day following the day on which
such fax was sent, provided that a copy is also sent by certified or registered
mail.
13. HEADINGS; EXECUTION IN COUNTERPART. The headings
to sections in this Agreement are for the convenience of the parties only and
shall not control or affect the meaning or construction of any provision hereof.
14. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
15. ENTIRE AGREEMENT. This Agreement, the Note and
Warrant Purchase Agreement and the Registration Rights Agreement constitute the
entire agreement and understanding of the parties hereto with respect to the
matters referred to herein. This Agreement and the agreements referred to in the
preceding sentence supersede all prior agreements and understandings among the
parties with respect to such matters.
16. INJUNCTIVE RELIEF. The parties hereto agree that
the Company and the Stockholders will be irreparably damaged in the event this
Agreement is not specifically enforced. Each of the parties therefore agrees
that in the event of a breach of any provision of this Agreement, the aggrieved
party may elect to institute and prosecute proceedings in any court of competent
jurisdiction to enforce specific performance or to enjoin the continuing breach
of this Agreement. Such remedies shall be cumulative and not exclusive, and
shall be in addition to any other remedy which the Company or any Stockholder
may have. Each Stockholder hereby
11
irrevocably submits to the non-exclusive jurisdiction of the state and federal
courts in New York for the purposes of any suit, action or other proceeding
arising out of or based upon this Agreement or the subject matter hereof. Each
Stockholder hereby consents to service of process made in accordance with
Section 12.
17. MISCELLANEOUS. All references in this Agreement
to Sections of or Rules under the Securities Act or the Exchange Act are
intended to include, and shall be deemed to include, references to all successor
Sections and Rules which are intended to replace the Sections and Rules herein
referenced.
18. DEFINED TERMS. As used in this Agreement, the
following terms shall have the meanings ascribed to them below:
"Affiliate" means a person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, the Person specified, including, without
limitation, with regard to the New Stockholders or the Existing Stockholders,
any partner or member of the New Stockholders or the Existing Stockholders,
respectively; provided that no Person shall be deemed to be an Affiliate of
another Person solely as a result of this Agreement, the Note and Warrant
Purchase Agreement and the Registration Rights Agreement or the other agreements
contemplated thereby, or solely as a result of the ownership of Common Stock
Equivalents.
"Beneficially own" has the meaning given in Rule
13d-3 under the Exchange Act.
"Board" means the board of directors of the Company.
"Change in Control Transaction" means any of the
following:
(a) the acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act), other than the Company, or any of its
Subsidiaries or any Investor or Excluded Group (an "Acquiring
Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 35% or more of
the combined voting power or economic interests of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors; provided, however,
that any transfer from any Investor or Excluded Group will not
result in a Change in Control if such transfer was part of one
or a series of related transactions the effect of which,
absent the transfer to such Acquiring Person by the Investor
or Excluded Group, would not have resulted in the acquisition
by such Acquiring Person of 35% or more of the combined voting
power or economic interests of the then outstanding voting
securities; or
(b) the individuals who at the beginning of any 12
consecutive month period following the Closing constituted a
majority of the directors of the Company (the "Incumbent
Majority") cease for any reason to constitute at least a
majority of such directors; provided that (I) any individual
becoming a director whose election, or nomination for election
by the Company's stockholders
12
pursuant to this Agreement, was approved by a vote of the
stockholders having the right to designate such director
pursuant to this Agreement and (II) any director whose
election to the Board or whose nomination for election by the
stockholders of the Company was approved by the Incumbent
Majority, shall, in each such case, be considered as though
such individual were a member of the Incumbent Majority, but
excluding, as a member of the Incumbent Majority, any such
individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the
election of the directors of the Company (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) and further excluding any person who is an
affiliate or associate of an Acquiring Person having or
proposing to acquire beneficial ownership of 25% or more of
the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors; or
(c) the approval by the stockholders of the Company
of a reorganization, merger or consolidation, in each case,
with respect to which all or substantially all of the
individuals and entities who were the respective beneficial
owners of the voting securities of the Company or its parent
immediately prior to such reorganization, merger or
consolidation do not, following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more
than 51% of the combined voting power of the then outstanding
voting securities entitled to vote generally in the election
of directors of the Company or its parent resulting from such
reorganization, merger or consolidation; or
(d) the sale or other disposition of assets
representing 50% or more of the assets of the Company and its
subsidiaries in one transaction or series of related
transactions.
"Closing" means the date hereof.
"Common Stock" means the common stock of the Company,
par value $.01 per share.
"Common Stock Equivalents" means the number of shares
of Common Stock owned beneficially or of record by the New Stockholders or the
Existing Stockholders, as the case may be, as of the date of this Agreement. In
the event that any New Stockholder Party or Existing Stockholder Party acquires
beneficial or record ownership of any Equity Securities after the date of this
Agreement which are not Common Stock Equivalents pursuant to the immediately
preceding sentence, any Equity Securities thereafter Transferred by such Person
shall be deemed to be such after acquired Equity Securities until the number of
such after acquired Equity Securities owned beneficially or of record by such
Person has been reduced to 0.
"Equity Security" means any stock or similar security
of the Company or any security (including indebtedness for borrowed money)
convertible or exchangeable, with or without consideration, into or for any such
stock or similar security, or any security (including
13
indebtedness for borrowed money) carrying any warrant or right to subscribe to
or purchase any such stock or similar security, or any such warrant or right.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Excluded Group" means a "group" (as such term is
used in Rule 13d-5 of the Exchange Act) that includes one or more of the
Investors, including, without limitation, for the purpose of this definition
only, any party to this Agreement.
"Existing Stockholders Assignee" means the Existing
Stockholders and any Affiliate of any Existing Stockholders, and, in the case of
any individual, such individual's spouse, parents, immediate family or lineal
descendants.
"Existing Stockholder Parties" means the Existing
Stockholders, the Existing Stockholders Assignees and any third party other than
an Involuntary Transferee or New Stockholder Party who receives Equity
Securities from any Existing Stockholder or any Existing Stockholders Assignee
pursuant to Section 1 of this Agreement.
"First Break Point" means the time at which the Total
Ownership Ratio for either DB or Essar, as the case may be, is less than 50% but
greater than 25%.
"Investor" means Questor or Xxxxxx or their
respective Affiliates.
"Involuntary Transfer" has the meaning set forth in
Section 1.3.
"Market Value" means, as of any date: (i) if any
Equity Securities are listed on a national securities exchange, the average of
the closing prices as reported for composite transactions during the 30
consecutive trading days preceding the trading day immediately prior to such
date or, if no sale occurred on a trading day, then the mean between the closing
bid and asked prices on such exchange on such trading day; (ii) if any Equity
Securities are traded on the Nasdaq National Market ("NMM"), the average of the
closing prices as reported on the NMM during the 30 consecutive trading days
preceding the trading day immediately prior to such date or, if no sale occurred
on a trading day, then the mean between the highest bid and lowest asked prices
as of the close of business on such trading day, as reported on the NMM; (iii)
if any Equity Securities are not traded on a national securities exchange or the
NMM but are otherwise traded over-the-counter, the arithmetic average (for
consecutive trading days) of the mean between the highest bid and lowest asked
prices as of the close of business during the 30 consecutive trading days
preceding the trading day immediately prior to such date as quoted on the
National Association of Securities Dealers Automated Quotation system or an
equivalent generally accepted reporting service; or (iv) if there is no active
market for any Equity Securities, the market value thereof as mutually agreed by
the Company and a majority of the Board including a majority of the independent
directors.
"New Stockholders Assignee" means the New
Stockholders and any Affiliate of the New Stockholders, and, in the case of any
individual, such individual's spouse, parents, immediate family or lineal
descendants.
14
"New Stockholders Parties" means the New
Stockholders, any New Stockholders Assignee and any third party other than an
Involuntary Transferee or Existing Stockholder Party who receives Equity
Securities from the New Stockholders or any the New Stockholders Assignee
pursuant to a Transfer to which Section 1.2 hereof applies.
"Note and Warrant Purchase Agreement" means the Note
and Warrant Purchase Agreement among the Company and the New Stockholders dated
as of the date of this Agreement.
"Person" means an individual, corporation,
partnership, limited liability company, joint venture, association, trust or
other entity or organization, including a government or political subdivision or
an agency or instrumentality thereof.
"Public Sale" means Transfers (I) to the general
public pursuant to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such registration statement,
(II) to or through a broker or dealer or underwriter in a public distribution or
a public securities transaction, or (III) in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions and restrictive legends
with respect to such Common Stock are removed upon the consummation of such
Transfer and the transferor and transferee of such Common Stock receive an
opinion of counsel for the Company, which shall be in form and content
reasonably satisfactory to the transferor and transferee and their respective
counsel, to the effect that such Common Stock in the hands of the transferee is
freely transferable without restriction or registration under the Securities Act
in a public or private transaction, or (IV) pursuant to Rule 144 or Rule 144A
under the Securities Act; provided that a Public Sale shall not include
Transfers of more than 5% of the Common Stock of the Company on a fully diluted
basis by any party in one or a series of related transactions to any single
Person or group (as defined in Rule 13d-5 under the Exchange Act).
"Purchase Agreement" means the Note and Warrant
Purchase Agreement by and among the Company and the New Stockholders dated as of
the date of this Agreement.
"Registration Rights Agreement" means the
Registration Rights Agreement among the Company and the New Stockholders dated
as of the date of this Agreement.
"Second Break Point" means the time at which the
Total Ownership Ratio for either DB or Essar, as the case may be, is less than
25% but greater than 10%.
"Securities Act" means the Securities Act of 1933, as
amended.
"Third Break Point" means the time at which the Total
Ownership Ratio for either DB or Essar, as the case may be, is less than 10%.
"Total Ownership" means, with respect to any party,
the total Common Stock Equivalents owned beneficially or of record by such party
after giving effect to the consummation of all of the transactions contemplated
by the Note and Warrant Purchase
15
Agreement (and assuming that all warrants held by such party have been
exercised) and without giving effect to any subsequent dispositions of Common
Stock Equivalents by such party.
"Total Ownership Ratio" means, with respect to any
party, the total Common Stock Equivalents owned beneficially or of record by
such party upon the date of determination divided by Total Ownership of such
party.
"Transfer" means any direct or indirect sale,
assignment, mortgage, transfer, pledge, hypothecation or other disposal other
than the exercise, conversion or exchange of any option, warrant or convertible
security.
[Remainder of this page left blank intentionally]
16
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first set forth above.
AEGIS COMMUNICATIONS GROUP, INC.
By: /s/ XXXXXX XXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President and Chief
Executive Officer
DEUTSCHE BANK AG -- LONDON,
BY DB ADVISORS, LLC AS INVESTMENT ADVISOR
By: /s/ XXXX XXXXXXXXX
------------------------------------
Name: Xxxx XxxXxxxxx
Title: Director
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
ESSAR GLOBAL LIMITED
By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Director
17
QUESTOR:
QUESTOR PARTNERS FUND II, L.P.
By: /s/ XXXX XXXXXXXX
------------------------------------
Name: Questor General Partner II,
L.P., its General Partner
Title: Managing Director
By: /s/ XXXX XXXXXXXX
------------------------------------
Name: Questor Principals II, Inc.,
its General Partner
Title: Managing Director
QUESTOR SIDE-BY-SIDE
PARTNERS II, L.P.
By: /s/ XXXX XXXXXXXX
------------------------------------
Name: Questor Principals II, Inc.
Title: Managing Director
QUESTOR SIDE-BY-SIDE
PARTNERS II 3(C)(1), L.P.
By: /s/ XXXX XXXXXXXX
------------------------------------
Name: Questor Principals II, Inc.
Title: Managing Director
18
TC CO-INVESTORS, LLC
By: /s/ XXXXXXXXXXX X. XXXXXX
-----------------------------------
Name: TC Management Partners, LLC
a Delaware limited liability
company, its General Partner
Title: An Authorized Officer
Name: Xxxxxxxxxxx X. Xxxxxx
XXXXXX EQUITY INVESTORS III, L.P.
By: /s/ XXXXXXXXXXX X. XXXXXX
-----------------------------------
Name: TC Equity Partners, LLC
a Delaware limited liability
company, its General Partner
Title: An Authorized Officer
Name: Xxxxxxxxxxx X. Xxxxxx
19
EXHIBIT A
Spousal Waiver
[INSERT NAME] hereby waives and releases any and all equitable or legal claims
and rights, actual, inchoate or contingent, which he or she may acquire with
respect to the disposition, voting or control of the shares of Common Stock
subject to the Stockholders' Agreement of Aegis Communications Group, Inc.,
dated as of _______, 2003, as the same shall be amended from time to time,
except for rights in respect of the proceeds of any disposition of such Common
Stock.
____________________________
Name:
20
