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EXHIBIT 4.3
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
REGARDING REGISTRATION RIGHTS
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT REGARDING REGISTRATION
RIGHTS (this "Stockholders Agreement"), dated as of _____________, 2000, is
entered into by and among ClientLogic Corporation, a Delaware corporation
(including its successors, the "Company"), Onex Holding Property Management Ltd.
("Onex") and the securityholders listed on the signature pages hereof.
WHEREAS, the Company and the Holders (as defined) have previously
entered into that certain Stockholders Agreement (the "Original Stockholders
Agreement"), dated as of October 8, 1998, as amended; and
WHEREAS, the Company has filed a registration statement for the public
sale of shares of its Class A Common Stock, par value $0.01 per share (the
"IPO"); and
WHEREAS, upon the consummation of the IPO, the Original Stockholders
Agreement will terminate, other than certain provisions thereof; and
WHEREAS, the parties hereto wish to amend and restate the Original
Stockholders Agreement in order to provide for expanded registration rights for
the Company's stockholders following the consummation of the IPO; and
WHEREAS, Onex has delivered a written consent to the amendment and
restated of the Original Stockholders Agreement in accordance with Section
8.9(b) of the Original Stockholders Agreement, and such written consent
constitutes approval by the Required Stockholders, as defined in the Original
Stockholders Agreement; and
WHEREAS, it is intended that this Stockholders Agreement be contingent
upon, and effective only upon and simultaneously with the consummation of, the
IPO.
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions.
"ADVICE" shall have the meaning provided in Section 2.5 hereof.
"AFFILIATE" means, with respect to any Person, any Person who,
directly or indirectly, controls, is controlled by or is under common
control with that Person. For purposes of this definition, "control"
when used with respect to any Person means the power to direct the
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management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise.
"CLASS A COMMON STOCK" means shares of the Class A Common Stock,
$0.01 par value per share, of the Company, and any capital stock into
which such Class A Common Stock thereafter may be changed, exchanged,
recapitalized or converted.
"CLASS A COMMON STOCK EQUIVALENTS" shall mean, without
duplication with any other Class A Common Stock or Class A Common Stock
Equivalents, any rights, warrants, options, convertible securities or
indebtedness, exchangeable securities or indebtedness, or other rights,
exercisable for or convertible or exchangeable into, directly or
indirectly, Class A Common Stock of the Company and securities
convertible or exchangeable into Class A Common Stock of the Company,
whether at the time of issuance or upon the passage of time or the
occurrence of some future event.
"CLASS B COMMON STOCK" means Class B Common Stock, par value
$0.01 per share, of the Company.
"COMPANY" shall have the meaning set forth in the introductory
paragraph hereof.
"DEMAND REGISTRATION" shall have the meaning set forth in Section
2.1.1 hereof.
"DEMAND REQUEST" shall have the meaning set forth in Section
2.1.1 hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC
thereunder.
"EXCLUDED REGISTRATION" means a registration under the Securities
Act of (i) securities pursuant to one or more Demand Registrations
pursuant to Section 2 hereof, (ii) securities registered on Form S-8 or
any similar or successor form and (iii) securities registered to effect
the acquisition of or combination with another Person.
"HOLDER" means (i) Onex, (ii) a securityholder who is listed on
the signature pages hereof and owns Securities or Class A Common Stock
Equivalents and (iii) any direct or indirect transferee of any such
securityholder who shall become a party to this Stockholders Agreement
by means of a Joinder Agreement in form and substance reasonably
satisfactory to the Company.
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"MATERIAL ADVERSE EFFECT" shall have the meaning provided in
Section 2.1.4 hereof.
"NASD" shall have the meaning provided in Section 2.6 hereof.
"ORIGINAL STOCKHOLDERS AGREEMENT" shall have the meaning set
forth in the Recitals.
"PERSON" or "PERSON" means any individual, corporation,
partnership, limited partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated
organization or entity or government or other agency or political
subdivision thereof.
"REGISTRABLE SHARES" shall mean, at any time, the Class A Common
Stock of the Company owned by or the readily issuable to the Holders,
whether owned on the date hereof or acquired hereafter; provided,
however, that Registrable Shares shall not include any shares (i) the
sale of which has been registered pursuant to the Securities Act and
which shares have been sold pursuant to such registration or (ii) which
have been sold pursuant to Rule 144 or Regulation S of the SEC under
the Securities Act.
"REGISTRATION EXPENSES" shall have the meaning provided in
Section 2.6 hereof.
"REQUIRED FILING DATE" shall have the meaning provided in Section
2.1.1(c) hereof.
"REQUIRED HOLDERS" means Holders who at the time of determination
own beneficially more than 66-2/3% of the aggregate number of
Registrable Shares subject to this Stockholders Agreement, assuming all
shares of Class B Common Stock are converted into Class A Common Stock.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Class A Common Stock and the Class B
Common Stock.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"SELLER AFFILIATES" shall have the meaning provided in Section
2.7.1 hereof.
"STOCKHOLDERS AGREEMENT" means this Stockholders Agreement, as
such from time to time may be amended.
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"SUBSIDIARY" of any Person means (i) a corporation a majority of
whose outstanding shares of capital stock or other equity interests
with voting power, under ordinary circumstances, to elect directors, is
at the time, directly or indirectly, owned by such Person, by one or
more subsidiaries of such Person or by such Person and one or more
subsidiaries of such Person, and (ii) any other Person (other than a
corporation) in which such Person, a subsidiary of such Person or such
Person and one or more subsidiaries of such Person, directly or
indirectly, at the date of determination thereof, has (x) at least a
majority ownership interest or (y) the power to elect or direct the
election of a majority of the directors or other governing body of such
Person.
"SUSPENSION NOTICE" shall have the meaning provided in Section
2.5 hereof.
"TRANSFER" means any disposition of any Security or any interest
therein that would constitute a "sale" thereof within the meaning of
the Securities Act.
1.2 Rules of Construction. Unless the context otherwise requires
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and words in the
plural include the singular;
(4) provisions apply to successive events and transactions; and
(5) "herein," "hereof" and other words of similar import refer to
this Stockholders Agreement as a whole and not to any particular
Article, Section or other subdivision.
ARTICLE 2
REGISTRATION RIGHTS
2.1 Demand Registration.
2.1.1 Request for Registration.
(a) At any time after one hundred eighty (180) days after the
date hereof (subject to Section 2.1.1(b) below), any Holder or Holders
may request the Company, in writing (a "Demand Request"), to effect the
registration under the Securities Act of all or part of its or their
Registrable Shares (a "Demand Registration"). Notwithstanding the
foregoing, no Demand Request will be effective hereunder unless the
Holders requesting
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the Demand Registration (the "Requesting Holders," which term shall
include parties deemed "Requesting Holders" pursuant to Section 2.1.5
hereof) represent, in the aggregate, a majority in interest of
the Registrable Shares at such time, assuming all of the shares of
Class B Common Stock are converted into Class A Common Stock.
(b) The Holders shall have the right to make a total of three
Demand Requests on Form S-1; provided, that if the Company is eligible
to register shares of Class A Common Stock on Form S-3, such Form shall
be utilized in lieu of Form S-1 for such Demand Requests unless in the
opinion of the managing underwriter the use of Form S-3 would
materially and negatively affect the marketing of the shares. Upon the
Company's eligibility to register shares of Class A Common Stock on
Form S-3, the Holders shall have unlimited Demand Requests; provided,
(i) that no more than three Demand Requests for registration can be
made in any consecutive twelve-month period and (ii) the fair market
value of the shares proposed to be registered shall be at least
(determined in good faith by the Company's Board of Directors), at the
time of the Company's receipt of the Demand Request, Ten Million
Dollars ($10,000,000). No Demand Request can be exercised under this
provision within 120 days after the effectiveness of a Company
registration if the Holder declined an offer under Section 2.2 to
register Class A Common Stock in such registration.
(c) Each Demand Request shall specify the number of Registrable
Shares proposed to be sold. Subject to Section 2.1.6, the Company shall
file the Demand Registration within ninety (90) days after receiving a
Demand Request (the "Required Filing Date") and shall use all
commercially reasonable efforts to cause the same to be declared
effective by the SEC as promptly as practicable after such filing.
2.1.2 Effective Registration and Expenses. A registration will not
count as a Demand Registration until it has become effective (unless the
Requesting Holders withdraw all their Registrable Shares and the Company has
performed its obligations hereunder in all material respects, in which case such
demand will count as a Demand Registration unless the Requesting Holders pay all
Registration Expenses, as hereinafter defined, in connection with such withdrawn
registration); provided, that if, after it has become effective, an offering of
Registrable Shares pursuant to a registration is interfered with by any stop
order, injunction, or other order or requirement of the SEC or other
governmental agency or court, such registration will be deemed not to have been
effected and will not count as a Demand Registration.
2.1.3 Selection of Underwriters. The offering of Registrable Shares
pursuant to a Demand Registration shall be in the form of a "firm commitment"
underwritten offering. The Requesting Holders of a majority of the Registrable
Shares to be registered in a Demand Registration shall select the investment
banking firm or firms
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to manage the underwritten offering; provided that such selection shall be
subject to the consent of the Company, which consent shall not be unreasonably
withheld.
2.1.4 Priority on Demand Registrations. No securities to be sold for
the account of any Person (including the Company) other than a Requesting Holder
shall be included in a Demand Registration unless the managing underwriter or
underwriters shall advise the Company or the Requesting Holders in writing that
the inclusion of such securities will not materially and adversely affect the
price or success of the offering (a "Material Adverse Effect"). Furthermore, in
the event the managing underwriter or underwriters shall advise the Company or
the Requesting Holders that even after exclusion of all securities of other
Persons pursuant to the immediately preceding sentence, the amount of
Registrable Shares proposed to be included in such Demand Registration by
Requesting Holders is sufficiently large to cause a Material Adverse Effect, the
Registrable Shares of the Requesting Holders to be included in such Demand
Registration shall equal the number of shares which the Company is so advised
can be sold in such offering without a Material Adverse Effect and such shares
shall be allocated pro rata among the Requesting Holders on the basis of the
number of Registrable Shares owned by each such Requesting Holder.
2.1.5 Rights of Nonrequesting Holders. Upon receipt of any Demand
Request, the Company shall promptly (but in any event within ten (10) days) give
written notice of such proposed Demand Registration to all other Holders, who
shall have the right, exercisable by written notice to the Company within twenty
(20) days of their receipt of the Company's notice, to elect to include in such
Demand Registration such portion of their Registrable Securities as they may
request. All Holders requesting to have their Registrable Shares included in a
Demand Registration in accordance with the preceding sentence shall be deemed to
be "Requesting Holders" for purposes of this Section 2.1.
2.1.6 Deferral of Filing. The Company may defer the filing of a
registration statement required by Section 2.1 until a date not later than one
hundred eighty (180) days after the Required Filing Date (or, if longer, one
hundred eighty (180) days after the effective date of the registration statement
contemplated by clause (ii) below) if (i) at the time the Company receives the
Demand Request, the Company or any of its Subsidiaries is engaged in
confidential negotiations or other confidential business activities, disclosure
of which would be required in such registration statement (but would not be
required if such registration statement were not filed), and the Board of
Directors of the Company determines in good faith that such disclosure would be
materially detrimental to the Company and its stockholders, or (ii) prior to
receiving the Demand Request, the Board of Directors had determined to effect a
registered underwritten public offering of the Company's securities for the
Company's account and the Company had taken substantial steps (including, but
not limited to, selecting a managing underwriter for such offering) and is
proceeding with reasonable diligence to effect such offering. A deferral of the
filing of a registration statement pursuant to this Section 2.1.6 shall be
lifted, and the requested registration statement shall be filed forthwith, if,
in the case of a deferral pursuant to clause (i) of the preceding sentence, the
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negotiations or other activities are disclosed or terminated, or, in the case of
a deferral pursuant to clause (ii) of the preceding sentence, the proposed
registration for the Company's account is abandoned. In order to defer the
filing of a registration statement pursuant to this Section 2.1.6, the Company
shall promptly (but in any event within ten (10) days), upon determining to seek
such deferral, deliver to each Requesting Holder a certificate signed by an
executive officer of the Company stating that the Company is deferring such
filing pursuant to this Section 2.1.6 and a general statement of the reason for
such deferral and an approximation of the anticipated delay. Within twenty (20)
days after receiving such certificate, the holders of a majority of the
Registrable Shares held by the Requesting Holders and for which registration was
previously requested may withdraw such Demand Request by giving notice to the
Company; if withdrawn, the Demand Request shall be deemed not to have been made
for all purposes of this Agreement. The Company may defer the filing of a
particular registration statement pursuant to this Section 2.1.6 only once,
unless it has the written consent of Holders of a majority in interest of the
Registrable Shares to further defer such filing.
2.2 Piggyback Registrations.
2.2.1 Right to Piggyback. Each time the Company proposes to register
any of its equity securities (other than pursuant to an Excluded Registration)
under the Securities Act for sale to the public (whether for the account of the
Company or the account of any securityholder of the Company) and the form of
registration statement to be used permits the registration of Registrable
Shares, the Company shall give prompt written notice to each Holder of
Registrable Shares (which notice shall be given not less than thirty (30) days
prior to the effective date of the Company's registration statement), which
notice shall offer each such Holder the opportunity to include any or all of its
or his Registrable Shares in such registration statement, subject to the
limitations contained in Section 2.2.2 hereof. Each Holder who desires to have
its or his Registrable Shares included in such registration statement shall so
advise the Company in writing (stating the number of shares desired to be
registered) within twenty (20) days after the date of such notice from the
Company. Any Holder shall have the right to withdraw such Holder's request for
inclusion of such Holder's Registrable Shares in any registration statement
pursuant to this Section 2.2.1 by giving written notice to the Company of such
withdrawal. Subject to Section 2.2.2 below, the Company shall include in such
registration statement all such Registrable Shares so requested to be included
therein; provided, however, that the Company may at any time withdraw or cease
proceeding with any such registration if it shall at the same time withdraw or
cease proceeding with the registration of all other equity securities originally
proposed to be registered.
2.2.2 Priority on Registrations. If the Registrable Shares requested to
be included in the registration statement by any Holder differ from the type of
securities proposed to be registered by the Company and the managing underwriter
advises the Company that due to such differences the inclusion of such
Registrable Shares would cause a Material Adverse Effect, then (i) the number of
such Holder's or Holders' Registrable Shares to be included in the registration
statement shall be reduced to an amount which, in the judgment of the managing
underwriter, would eliminate such
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Material Adverse Effect or (ii) if no such reduction would, in the judgment of
the managing underwriter, eliminate such Material Adverse Effect, then the
Company shall have the right to exclude all such Registrable Shares from such
registration statement provided no other securities of such type are included
and offered for the account of any other Person in such registration statement.
Any partial reduction in number of Registrable Shares to be included in the
registration statement pursuant to clause (i) of the immediately preceding
sentence shall be effected pro rata based on the ratio which such Holder's
requested shares bears to the total number of shares requested to be included in
such registration statement by all Persons (including Requesting Holders) who
have requested (pursuant to contractual registration rights) that their shares
be included in such registration statement. If the Registrable Shares requested
to be included in the registration statement are of the same type as the
securities being registered by the Company and the managing underwriter advises
the Company that the inclusion of such Registrable Shares would cause a Material
Adverse Effect, the Company will be obligated to include in such registration
statement, as to each Requesting Holder, only a portion of the shares such
Holder has requested be registered equal to the ratio which such Holder's
requested shares bears to the total number of shares requested to be included in
such registration statement by all Persons (including Requesting Holders) who
have requested (pursuant to contractual registration rights) that their shares
be included in such registration statement. If as a result of the provisions of
this Section 2.2.2 any Holder shall not be entitled to include all Registrable
Securities in a registration that such Holder has requested to be so included,
such Holder may withdraw such Holder's request to include Registrable Shares in
such registration statement. No Person may participate in any registration
statement hereunder unless such Person (x) agrees to sell such person's
Registrable Shares on the basis provided in any underwriting arrangements
approved by the Company and (y) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements, and other documents,
each in customary form, reasonably required under the terms of such underwriting
arrangements; provided, however, that no such Person shall be required to make
any representations or warranties in connection with any such registration other
than representations and warranties as to (i) such Person's ownership of his or
its Registrable Shares to be sold or transferred free and clear of all liens,
claims, and encumbrances, (ii) such Person's power and authority to effect such
transfer, and (iii) such matters pertaining to compliance with securities laws
as may be reasonably requested; provided further, however, that the obligation
of such Person to indemnify pursuant to any such underwriting arrangements shall
be several, not joint and several, among such Persons selling Registrable
Shares, and the liability of each such Person will be in proportion to, and
provided further that such liability will be limited to, the net amount received
by such Person from the sale of his or its Registrable Shares pursuant to such
registration.
2.3 Holdback Agreement. Unless the managing underwriter otherwise agrees,
each of the Company and the Holders agrees (and the Company agrees, in
connection with any underwritten registration, to use its reasonable efforts to
cause its Affiliates to agree) not to effect any public sale or private offer or
distribution of any Class A
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Common Stock or Class A Common Stock Equivalents during the ten business days
prior to the effectiveness under the Securities Act of any underwritten
registration and during such time period after the effectiveness under the
Securities Act of any underwritten registration (not to exceed one hundred
eighty (180) days) (except, if applicable, as part of such underwritten
registration) as the Company and the managing underwriter may agree.
2.4 Registration Procedures. Whenever any Holder has requested that any
Registrable Shares be registered pursuant to this Stockholders Agreement, the
Company will use its commercially reasonable efforts to effect the registration
and the sale of such Registrable Shares in accordance with the intended method
of disposition thereof, and pursuant thereto the Company will as expeditiously
as possible:
(i) prepare and file with the SEC a registration statement on any
appropriate form under the Securities Act with respect to such
Registrable Shares and use its commercially reasonable efforts to cause
such registration statement to become effective;
(ii) prepare and file with the SEC such amendments,
post-effective amendments, and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of
not less than one hundred eighty (180) days (or such lesser period as
is necessary for the underwriters in an underwritten offering to sell
unsold allotments) and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in
such registration statement;
(iii) furnish to each seller of Registrable Shares and the
underwriters of the securities being registered such number of copies
of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus), any documents incorporated by reference
therein and such other documents as such seller or underwriters may
reasonably request in order to facilitate the disposition of the
Registrable Shares owned by such seller or the sale of such securities
by such underwriters (it being understood that, subject to Section 2.5
and the requirements of the Securities Act and applicable state
securities laws, the Company consents to the use of the prospectus and
any amendment or supplement thereto by each seller and the underwriters
in connection with the offering and sale of the Registrable Shares
covered by the registration statement of which such prospectus,
amendment or supplement is a part);
(iv) use its commercially reasonable efforts to register or
qualify such Registrable Shares under such other securities or blue sky
laws of
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such jurisdictions as the managing underwriter reasonably requests (or,
in the event the registration statement does not relate to an
underwritten offering, as the holders of a majority of such Registrable
Shares may reasonably request); use its commercially reasonable efforts
to keep each such registration or qualification (or exemption
therefrom) effective during the period in which such registration
statement is required to be kept effective; and do any and all other
acts and things which may be reasonably necessary or advisable to
enable each seller to consummate the disposition of the Registrable
Shares owned by such seller in such jurisdictions (provided, however,
that the Company will not be required to (A) qualify generally to do
business in any jurisdiction where it would not otherwise be required
to qualify but for this subparagraph, (B) consent to general service of
process in any such jurisdiction) or (C) qualify in any jurisdiction
where such qualification would subject it to taxation unless the
Company is already subject to taxation in such jurisdiction;
(v) promptly notify each seller and each underwriter and (if
requested by any such Person) confirm such notice in writing (A) when a
prospectus or any prospectus supplement or post-effective amendment has
been filed and, with respect to a registration statement or any
post-effective amendment, when the same has become effective, (B) of
the issuance by any state securities or other regulatory authority of
any order suspending the qualification or exemption from qualification
of any of the Registrable Shares under state securities or "blue sky"
laws or the initiation of any proceedings for that purpose, and (C) of
the happening of any event which makes any statement made in a
registration statement or related prospectus untrue or which requires
the making of any changes in such registration statement, prospectus or
documents so that they will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and, as promptly as practicable thereafter, prepare and file with the
SEC and furnish a supplement or amendment to such prospectus so that,
as thereafter deliverable to the purchasers of such Registrable Shares,
such prospectus will not contain any untrue statement of a material
fact or omit a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading;
(vi) make generally available to the Company's securityholders an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than thirty (30) days after the end of the
twelve (12) month period beginning with the first day of the Company's
first fiscal quarter commencing after the effective date of a
registration statement, which earnings statement shall cover said
twelve (12) month period, and which requirement will be deemed to be
satisfied if the Company timely files complete and accurate information
on Forms 10-Q, 10-K and 8-K
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under the Exchange Act and otherwise complies with Rule 158 under the
Securities Act;
(vii) if requested by the managing underwriter or any seller
promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or any seller
reasonably requests to be included therein, including, without
limitation, with respect to the Registrable Shares being sold by such
seller, the purchase price being paid therefor by the underwriters and
with respect to any other terms of the underwritten offering of the
Registrable Shares to be sold in such offering, and promptly make all
required filings of such prospectus supplement or post-effective
amendment;
(viii) as promptly as practicable after filing with the SEC of
any document which is incorporated by reference into a registration
statement (in the form in which it was incorporated), deliver a copy of
each such document to each seller;
(ix) cooperate with the sellers and the managing underwriter to
facilitate the timely preparation and delivery of certificates (which
shall not bear any restrictive legends unless required under applicable
law) representing securities sold under any registration statement, and
enable such securities to be in such denominations and registered in
such names as the managing underwriter or such sellers may request and
keep available and make available to the Company's transfer agent prior
to the effectiveness of such registration statement a supply of such
certificates;
(x) promptly make available for inspection by any seller, any
underwriter participating in any disposition pursuant to any
registration statement, and any attorney, accountant or other agent or
representative retained by any such seller or underwriter
(collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause
the Company's officers, directors and employees to supply all
information requested by any such Inspector in connection with such
registration statement; provided, that, unless the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in
the registration statement or the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, the Company shall not be required to provide any
information under this subparagraph (x) if (A) the Company believes,
after consultation with counsel for the Company, that to do so would
cause the Company to forfeit an attorney-client privilege that was
applicable to such information or (B) if either (1) the Company has
requested and been granted from the SEC confidential treatment of such
information
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contained in any filing with the SEC or documents provided
supplementally or otherwise or (2) the Company reasonably determines in
good faith that such Records are confidential and so notifies the
Inspectors in writing unless prior to furnishing any such information
with respect to (A) or (B) such seller or underwriter participating in
such disposition requesting such information agrees to enter into a
confidentiality agreement in customary form and subject to customary
exceptions and agrees to inform his or its attorneys, accountants,
agents and representatives of such agreement; and provided, further
that each Holder of Registrable Securities agrees that it will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the
Company, at its expense, to undertake appropriate action and to prevent
disclosure of the Records deemed confidential;
(xi) furnish to each seller and underwriter a signed counterpart
of (A) an opinion or opinions of counsel to the Company, and (B) a
comfort letter or comfort letters from the Company's independent public
accountants, each in customary form and covering such matters of the
type customarily covered by opinions or comfort letters, as the case
may be, as the sellers or managing underwriter reasonably requests;
(xii) cause the Registrable Shares included in any registration
statement to be (A) listed on each securities exchange, if any, on
which similar securities issued by the Company are then listed, or (B)
authorized to be quoted and/or listed (to the extent applicable) on the
National Association of Securities Dealers, Inc. Automated Quotation
System or the Nasdaq National Market if the Registrable Shares so
qualify;
(xiii) provide a CUSIP number for the Registrable Shares included
in any registration statement not later than the effective date of such
registration statement;
(xiv) cooperate with each seller and each underwriter
participating in the disposition of such Registrable Shares and their
respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.;
(xv) during the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents
required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act;
(xvi) notify each seller of Registrable Shares promptly of any
request by the SEC for the amending or supplementing of such
registration statement or prospectus or for additional information;
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(xvii) prepare and file with the SEC promptly any amendments or
supplements to such registration statement or prospectus which, in the
opinion of counsel for the Company or the managing underwriter, is
required in connection with the distribution of the Registrable Shares;
(xviii) enter into such agreements (including underwriting
agreements in the managing underwriter's customary form) as are
customary in connection with an underwritten registration; and
(xix) advise each seller of such Registrable Shares, promptly
after it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the SEC suspending the effectiveness of
such registration statement or the initiation or threatening of any
proceeding for such purpose and promptly use its best efforts to
prevent the issuance of any stop order or to obtain its withdrawal at
the earliest possible moment if such stop order should be issued.
2.5 Suspension of Dispositions. Each Holder agrees by acquisition of any
Registrable Shares that, upon receipt of any notice (a "Suspension Notice") from
the Company of the happening of any event of the kind described in Section
2.4(v)(C) such Holder will forthwith discontinue disposition of Registrable
Shares until such Holder's receipt of the copies of the supplemented or amended
prospectus, or until it is advised in writing (the "Advice") by the Company that
the use of the prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
prospectus, and, if so directed by the Company, such Holder will deliver to the
Company all copies, other than permanent file copies then in such Holder's
possession, of the prospectus covering such Registrable Shares current at the
time of receipt of such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of registration statements
set forth in Section 2.4(ii) hereof shall be extended by the number of days
during the period from and including the date of the giving of the Suspension
Notice to and including the date when each seller of Registrable Shares covered
by such registration statement shall have received the copies of the
supplemented or amended prospectus or the Advice. The Company shall use its
commercially reasonable efforts and take such actions as are reasonably
necessary to render the Advice as promptly as practicable.
2.6 Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Article 2 including, without limitation,
all registration and filing fees, all fees and expenses associated with filings
required to be made with the National Association of Securities Dealers, Inc.
("NASD") (including, if applicable, the fees and expenses of any "qualified
independent underwriter" as such term is defined in Schedule E of the By-Laws of
the NASD, and of its counsel), as may be required by the rules and regulations
of the NASD, fees and expenses of compliance with securities or "blue sky" laws
(including reasonable fees and disbursements of counsel in connection with "blue
sky" qualifications of the Registrable Shares), rating agency fees, printing
expenses (including expenses of printing certificates for the
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Registrable Shares in a form eligible for deposit with Depository Trust Company
and of printing prospectuses if the printing of prospectuses is requested by a
holder of Registrable Shares), messenger and delivery expenses, the Company's
internal expenses (including without limitation all salaries and expenses of its
officers and employees performing legal or accounting duties), the fees and
expenses incurred in connection with any listing of the Registrable Shares, fees
and expenses of counsel for the Company and its independent certified public
accountants (including the expenses of any special audit or "cold comfort"
letters required by or incident to such performance), securities acts liability
insurance (if the Company elects to obtain such insurance), the fees and
expenses of any special experts retained by the Company in connection with such
registration, and the fees and expenses of other persons retained by the Company
and reasonable fees and expenses of one firm of counsel for the sellers (which
shall be selected by the holders of a majority of the Registrable Shares being
included in any particular registration statement) (all such expenses being
herein called "Registration Expenses") will be borne by the Company whether or
not any registration statement becomes effective; provided that in no event
shall Registration Expenses include any underwriting discounts, commissions, or
fees attributable to the sale of the Registrable Shares or any counsel (except
as provided above), accountants, or other persons retained or employed by the
Holders.
2.7 Indemnification.
2.7.1 The Company agrees to indemnify and reimburse, to the fullest
extent permitted by law, each seller of Registrable Shares, and each of its
employees, advisors, agents, representatives, partners, officers, and directors
and each Person who controls such seller (within the meaning of the Securities
Act or the Exchange Act) and any agent or investment advisor thereof
(collectively, the "Seller Affiliates") (A) against any and all losses, claims,
damages, liabilities, and expenses, joint or several (including, without
limitation, attorneys' fees, costs and disbursements except as limited by
Section 2.7.3) (collectively, "Expenses") based upon, arising out of, related to
or resulting from any untrue or alleged untrue statement of a material fact
contained in any registration statement, prospectus, or preliminary prospectus
or any amendment thereof or supplement thereto, or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, (B) against any and all Expenses, as
incurred, to the extent of the aggregate amount paid in connection with a
settlement (including any settlement amounts) of any litigation or investigation
or proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon, arising out of, related to or resulting from
any such untrue statement or omission or alleged untrue statement or omission,
(C) against any and all Expenses arising from (i) any blue sky application or
other document executed by the Company specifically for that purpose or based
upon written information furnished by the Company filed in any state or other
jurisdiction in order to qualify any or all of the Class A Common Stock under
the securities laws thereof, (ii) any violation by the Company or its agents of
any rule or regulation promulgated under the Securities Act applicable to the
Company or its agents and relating to action or inaction required of the Company
in connection with such registration, or (iii) any failure to register or
qualify the Class A Common Stock in any state where the Company or its agents
have
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affirmatively undertaken or agreed in writing that the Company (the
undertaking of any underwriter chose by the Company being attributed to the
Company) will undertake such registration or qualification on the Holder's
behalf (provided that in such instance the Company shall not be so liable if it
has undertaken its best efforts to so register or qualify the Class A Common
Stock) and (D) any and all Expenses as may be reasonably incurred in
investigating, preparing, or defending against any litigation, or investigation
or proceeding by any governmental agency or body or any third party, commenced
or threatened, or any claim whatsoever based upon, arising out of, related to or
resulting from or in connection with any of subparagraph (A), (B), (C) or (D)
above; except insofar as any untrue statement or omission to state a material
fact is made in reliance upon and in strict conformity with information
furnished in writing to the Company by such seller or any Seller Affiliate for
use therein or arise from such seller's or any Seller Affiliate's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such seller or Seller
Affiliate with a sufficient number of copies of the same. The reimbursements
required by this Section 2.7.1 will be made by periodic payments during the
course of the investigation or defense, as and when bills are received or
expenses incurred.
2.7.2 In connection with any registration statement in which a seller
of Registrable Shares is participating, each such seller will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the fullest extent permitted by law, each such seller will
indemnify the Company and its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act or the Exchange
Act) against any and all losses, claims, damages, liabilities, and expenses
(including, without limitation, reasonable attorneys' fees, costs and
disbursements except as limited by Section 2.7.3) resulting from any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement, prospectus, or any preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission is contained in any
information or affidavit so furnished in writing by such seller or any of its
Seller Affiliates specifically for inclusion in the registration statement;
provided that the obligation to indemnify will be several, not joint and
several, among such sellers of Registrable Shares, and the liability of each
such seller of Registrable Shares will be in proportion to, and provided further
that such liability will be limited to, the net amount received by such seller
from the sale of Registrable Shares pursuant to such registration statement;
provided, however, that such seller of Registrable Shares shall not be liable in
any such case to the extent that prior to the filing of any such registration
statement or prospectus or amendment thereof or supplement thereto, such seller
has furnished in writing to the Company information expressly for use in such
registration statement or prospectus or any amendment thereof or supplement
thereto which corrected or made not misleading information previously furnished
to the Company.
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2.7.3 Any Person entitled to indemnification hereunder will (A) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give such notice
shall not limit the rights of such Person unless such failure has materially and
adversely prejudiced the indemnifying party) and (B) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person unless (X) the
indemnifying party has agreed to pay such fees or expenses, or (Y) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person. If such defense is not
assumed by the indemnifying party as permitted hereunder, the indemnifying party
will not be subject to any liability for any settlement made by the indemnified
party without its consent (but such consent will not be unreasonably withheld).
If such defense is assumed by the indemnifying party pursuant to the provisions
hereof, such indemnifying party shall not settle or otherwise compromise the
applicable claim unless (1) such settlement or compromise contains a full and
unconditional release of the indemnified party or (2) the indemnified party
otherwise consents in writing. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party, a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the
reasonable fees and disbursements of such additional counsel or counsels.
2.7.4 Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 2.7.1 or Section 2.7.2 are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities, or expenses (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, liabilities, or expenses (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 actions which resulted in
the losses, claims, damages, liabilities or expenses as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by 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 relates to information supplied by
such indemnifying party or 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 contribution pursuant to this Section 2.7.4 were
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determined by pro rata allocation (even if the Holders or any 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 2.7.4. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities, or expenses (or
actions in respect thereof) referred to above shall be deemed to include any
legal or other costs, fees or expenses reasonably incurred by such indemnified
party in connection with investigating or, except as provided in Section 2.7.3,
defending any such action or claim. Notwithstanding the provisions of this
Section 2.7.4, no Holder shall be required to contribute an amount greater than
the dollar amount by which the net proceeds received by such Holder with respect
to the sale of any Registrable Shares exceeds the amount of damages which such
Holder has otherwise been required to pay by reason of any and all untrue or
alleged untrue statements of material fact or omissions or alleged omissions of
material fact made in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto related to such sale
of Registrable Securities. 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' obligations in this Section 2.7.4 to contribute
shall be several in proportion to the amount of Registrable Shares registered by
them and not joint.
If indemnification is available under this Section 2.7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 2.7.1 and Section 2.7.2 without regard to the relative fault
of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 2.7.4 subject, in the case of the
Holders, to the limited dollar amounts set forth in Section 2.7.2.
2.7.5 The indemnification and contribution provided for under this
Stockholders Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director, or controlling Person of such indemnified party and will survive the
transfer of securities.
ARTICLE 3
EFFECTIVE DATE; TERMINATION
3.1 Effective Date. This Stockholders Agreement shall be effective and the
Original Stockholders Agreement shall terminate upon the consummation of the
IPO.
3.2 Termination. This Stockholders Agreement shall terminate ten years from
the date of the consummation of a Qualified IPO.
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ARTICLE 4
MISCELLANEOUS
4.1 Notices. Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telex, by telecopier or registered or certified mail, postage
prepaid, return receipt requested, addressed as follows (or at such other
address as may be substituted by notice given as herein provided):
If to the Company:
Two American Center
0000 Xxxx Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
With copies to (which shall not constitute notice):
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx
If to any Holder, at its address listed on the signature pages
hereof.
Any notice or communication hereunder shall be deemed to have been
given or made as of the date so delivered if personally delivered; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and five (5)
calendar days after mailing if sent by registered or certified mail (except that
a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
4.2 Governing Law. THIS STOCKHOLDERS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
4.3 Successors and Assigns. The provisions of this Stockholders Agreement that
are for the Holders' benefit as the holders of any Securities are also for the
benefit of, and enforceable by, all subsequent holders of Securities, except to
the extent that such Securities are sold or otherwise transferred (i) pursuant
to an effective registration statement filed under the Securities Act or (ii)
pursuant to Rule 144 under the Securities Act (or any similar or successor
rule); provided, that no transferee shall have any rights under this
Stockholders Agreement until such transferee has executed and delivered to the
Company a Joinder Agreement hereto in form and substance reasonably satisfactory
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to the Company. This Stockholders Agreement shall be binding upon the Company,
each Holder, and their respective successors and assigns.
4.4 Duplicate Originals. All parties may sign any number of copies of this
Stockholders Agreement. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
4.5 Severability. In case any provision in this Stockholders Agreement
shall be held invalid, illegal or unenforceable in any respect for any reason,
the validity, legality and enforceability of any such provision in every other
respect and the remaining provisions shall not in any way be affected or
impaired thereby
4.6 No Waivers; Amendments.
4.6.1 No failure or delay on the part of the Company or any Holder in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy; provided, that the parties hereto agree that time
is of the essence with respect to Holders exercising their rights to participate
in a registration pursuant to Sections 2.1.5 or 2.2.1. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to the Company or any Holder at law or in equity or otherwise.
4.6.2 Any provision of this Stockholders Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Company and the Required Holders.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Stockholders
Agreement to be duly executed as of the date first written above.
CLIENTLOGIC CORPORATION
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
NAME OF HOLDER:
ONEX HOLDING PROPERTY MANAGEMENT LTD.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address:
c/o:
-----------------------------------------
---------------------------------------------
---------------------------------------------
Attention: Xxxxxx X. Xxxx
Copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx
LIST OF OTHER HOLDERS:
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