CONFORMED COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is entered into as
of May 4, 1998, by and between ATC Communications Group, Inc., a Delaware
corporation (the "COMPANY"), and Xxxxxx Equity Investors III, L.P., a
Delaware limited partnership ("XXXXXX").
RECITALS
A. On the date hereof, Xxxxxx has entered into that certain
Reimbursement and Indemnification Agreement (the "REIMBURSEMENT AGREEMENT")
with the Company and Advanced Telemarketing Corporation, the Company's wholly
owned subsidiary ("ADVANCED"), pursuant to which Xxxxxx has agreed to arrange
for the letter of credit in the amount of TWO MILLION DOLLARS ($2,000,000.00)
from Nova Scotia Bank.
B. In connection with the Reimbursement Agreement, the Company has
agreed to execute and deliver this Agreement to Xxxxxx.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Section 1 shall have the meanings herein specified for all
purposes of this Agreement, applicable to both the singular and plural forms
of any of the terms herein defined.
"AGREEMENT" means this Registration Rights Agreement.
"BOARD" means the Board of Directors of the Company.
"COMMON STOCK" means the common stock, $.01 par value, of the Company.
"COMMISSION" means the Securities and Exchange Commission.
"EQUITY SECURITY" means any stock or similar security of the Company or
any security (whether stock or indebtedness for borrowed money) convertible
or exchangeable, with or without consideration, into or for any stock or
similar security, or any security (whether or not indebtedness for borrowed
money) carrying any warrant or right to subscribe to or purchase any stock or
similar security, or any such warrant or right.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"HOLDER" of any security means the record or beneficial owner of such
security. A Holder of the Warrant shall be treated as the Holder of the
Registrable Securities underlying such Warrant.
"HOLDERS OF A MAJORITY OF THE REGISTRABLE SECURITIES" means the Person
or Persons who are the Holders of greater than 50% of the shares of
Registrable Securities then outstanding.
"INITIATING HOLDERS" means with respect to a registration effected
pursuant to Section 2 hereof the Holders of at least 200,000 shares of the
Registrable Securities.
"LIEN" means any mortgage, pledge, security interest, encumbrance,
community property interest, trust, option, lien or charge of any kind,
including, without limitation, any conditional sale or other title retention
agreement, any lease in the nature thereof and the filing of or agreement to
give any financing statement under the Uniform Commercial Code of any
jurisdiction and including any lien or charge arising by statute or other law.
"PERSON" includes any natural person, corporation, trust, association,
company, partnership, limited liability company, joint venture and other
entity and any government, governmental agency, instrumentality or political
subdivision.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer 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.
"REGISTRABLE SECURITIES" means (1) shares of the Common Stock issued or
issuable upon exercise or conversion of the Warrant issued pursuant to this
Agreement, so long as they are owned by Xxxxxx, any limited partner of Xxxxxx
or any affiliate (as defined under the Securities Act) of Xxxxxx or Xxxxxx'x
general partner, and (2) any securities issued or issuable with respect to
the Common Stock referred to in clause (1) above by way of a stock dividend
or stock split or in connection with a combination of shares,
reclassification, recapitalization, merger or consolidation or
reorganization; provided, however, that such shares of Common Stock shall
only be treated as Registrable Securities if and so long as they have not
been (i) sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, or (ii) sold 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 sale and the seller and purchaser of
such Common Stock receive an opinion of counsel for the Company, which shall
be in form and content reasonably satisfactory to the seller and buyer and
their respective counsel, to the effect that such Common Stock in the hands
of the purchaser is freely transferable without restriction or registration
under the Securities Act in any public or private transaction.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"XXXXXX" has the meaning assigned to it in the introductory paragraph of
this Agreement.
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"WARRANT" means the Second Warrant to Purchase Common Stock which has
been issued to Xxxxxx by the Company on the date hereof pursuant to the
Reimbursement Agreement, and any warrant issued upon transfer or substitution
thereof.
"WARRANT CERTIFICATE" means the certificate dated May 4, 1998, held by
Xxxxxx and evidencing the right to purchase up to 1,000,000 shares of Common
Stock.
"WARRANT SHARES" means the Common Stock issued or issuable upon exercise
of the Warrant.
2. REQUIRED REGISTRATION.
(a) If and whenever the Company shall receive a written request
therefor from Initiating Holders, the Company agrees to prepare and file
promptly a registration statement under the Securities Act covering the
shares of Registrable Securities which are the subject of such request and
agrees to use its best efforts to cause such registration statement to become
effective as expeditiously as possible. Upon the receipt of such request,
the Company agrees to give promptly written notice to all Holders of
Registrable Securities that such registration is to be effected. The Company
agrees to include in such registration statement such shares of Registrable
Securities for which it has received written requests to register such shares
by the Holders thereof within thirty (30) days after the receipt of written
notice from the Company.
(b) The Company shall be obligated to prepare, file and cause to
become effective only one registration statement pursuant to this Section 4
on a form other than S-3, plus three additional registration statements on
Form S-3.
(c) A registration under this Section 2 shall be on a form
selected by the Company and reasonably acceptable to the Holders of a
majority of the shares of Registrable Securities to be included in such
registration.
(d) If the Holders initiating a request for the registration of
Registrable Securities pursuant to this Section 2 intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they agree to provide the Company with the name of the managing underwriter
or underwriters (the "managing underwriter") that a majority interest of the
Initiating Holders requesting such registration propose to employ, as a part
of their request made pursuant to this Section 2, which managing underwriter
shall be reasonably acceptable to the Company. Furthermore, the Company
agrees to include such information regarding the managing underwriter in its
written notice referred to in Section 2(a). In such event the right of any
Holder to registration pursuant to this Section 2 shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent requested
(unless otherwise mutually agreed by the Holders of a Majority of the
Registrable Securities initiating such request for registration and such
Holder) to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting agree to enter into (together with
the Company) an underwriting agreement with the underwriter or underwriters
selected for such underwriting, in the manner set forth above, provided that
such underwriting agreement is in customary form and is
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reasonably acceptable to the Company and the Holders of a majority of the
shares of Registrable Securities to be included in such registration.
(e) Notwithstanding any other provision of this Section 2, if the
managing underwriter of an underwritten distribution advises the Company and
the Holders of Registrable Securities participating in such registration in
writing that in its good faith judgment the number of shares of Registrable
Securities requested to be included in such registration exceeds the number
of shares of Registrable Securities which can be sold in such offering, then
(i) the number of shares of Registrable Securities so requested to be
included in such registration shall be reduced to that number of shares which
in the good faith judgment of the managing underwriter can be sold in such
offering and (ii) this reduced number of shares shall be allocated among all
Holders thereof in proportion, as nearly as practicable, to the respective
number of shares of Registrable Securities held by such Holders at the time
of filing the registration statement.
(f) To the extent all shares of Registrable Securities of the
Initiating Holders are not included in the registration statement due to the
underwriter cutbacks described above, such registration shall not count as
the demand registration to which the Initiating Holders are entitled pursuant
to subparagraph (b) of this Section 2.
(g) If the managing underwriter has not limited the number of
Registrable Securities to be underwritten, the Company may include securities
for its own account in such registration if the managing underwriter so
agrees and if the number of Registrable Securities which would otherwise have
been included in such registration and underwriting will not thereby be
limited.
(h) Notwithstanding any of the foregoing, the Company may delay
filing a registration statement and may withhold efforts to cause the
registration statement to become effective, if the Company reasonably
determines in good faith that such registration might (i) interfere with or
affect the negotiation or completion of any transaction that is being
contemplated by the Company (whether or not a final decision has been made to
undertake such transaction) at the time the right to delay is exercised, or
(ii) involve initial or continuing disclosure obligations that might not be
in the best interest of the Company's stockholders. If, after a registration
statement becomes effective, the Company advises the holders of the
registered shares that the Company considers it appropriate for the
registration statement to be amended, the holders of such shares shall
suspend any further sales of their registered shares until the Company
advises them that the registration statement has been amended.
3. INCIDENTAL REGISTRATION.
(a) Each time the Company shall determine to file a registration
statement under the Securities Act (other than (i) pursuant to Section 2
hereof, (ii) on Form S-8 or a registration statement on Form S-1 covering
solely an employee benefit plan and (iii) on Form S-4) in connection with the
proposed offer and sale for money of any of its securities either for its own
account or on behalf of any other security holder,
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the Company agrees to give promptly written notice of its determination to
all Holders of Registrable Securities. Upon the written request of a Holder
of any shares of Registrable Securities given within thirty (30) days after
the receipt of such written notice from the Company, the Company agrees to
cause all such Registrable Securities, the Holders of which have so requested
registration thereof, to be included in such registration statement and
registered under the Securities Act, all to the extent requisite to permit
the sale or other disposition by the prospective seller or sellers of the
Registrable Securities to be so registered.
(b) If the registration of which the Company gives written notice
pursuant to Section 3(a) is for a public offering involving an underwriting,
the Company agrees to so advise the Holders as a part of its written notice.
In such event the right of any Holder to registration pursuant to this
Section 3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to
distribute their Registrable Securities through such underwriting agree to
enter into (together with the Company and the other holders distributing
their securities through such underwriting) an underwriting agreement with
the underwriter or underwriters selected for such underwriting by the
Company, provided that such underwriting agreement is in customary form and
is reasonably acceptable to the Holders of a majority of the shares of
Registrable Securities requested to be included in such registration.
(c) Notwithstanding any other provision of this Section 3, if the
managing underwriter of an underwritten distribution advises the Company and
the Holders of the Registrable Securities participating in such registration
in writing that in its good faith judgment the number of shares of
Registrable Securities exceeds the number of shares of Registrable Securities
which can be sold in such offering, then (i) the number of shares of
Registrable Securities so requested to be included in the offering shall be
reduced to that number of shares which in the good faith judgment of the
managing underwriter can be sold in such offering (except for shares to be
issued by the Company in an offering initiated by the Company, which shall
have priority over the shares of Registrable Securities), and (ii) such
reduced number of shares shall be allocated among all participating Holders
of Registrable Securities in proportion, as nearly as practicable, to the
respective number of shares of Registrable Securities by such Holders at the
time of filing the registration statement.
4. REGISTRATION PROCEDURES. If and whenever the Company is required
by the provisions of Section 2 or 3 hereof to effect the registration of
Registrable Securities under the Securities Act, the Company, at its expense
and as expeditiously as possible, agrees to:
(a) In accordance with the Securities Act and all applicable rules
and regulations, prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause
such registration statement to become and remain effective until the
securities covered by such registration statement have been sold, and prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus contained therein as may be
necessary to
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keep such registration statement effective and such registration statement
and prospectus accurate and complete until the securities covered by such
registration statement have been sold;
(b) If the offering is to be underwritten in whole or in part,
enter into a written underwriting agreement in form and substance reasonably
satisfactory to the managing underwriter of the public offering, the Holders
of a majority of the Registrable Securities participating in such offering,
and the Company;
(c) Furnish to the Holders of securities participating in such
registration and to the underwriters of the securities being registered such
number of copies of the registration statement and each amendment and
supplement thereto, preliminary prospectus, final prospectus and such other
documents as such underwriters and Holders may reasonably request in order to
facilitate the public offering of such securities;
(d) Use its best efforts to register or qualify the securities
covered by such registration statement under such state securities or blue
sky laws of such jurisdictions as such participating Holders and underwriters
may reasonably request within ten (10) days prior to the original filing of
such registration statement, except that the Company shall not for any
purpose be required to execute a general consent to service of process or to
qualify to do business as a foreign corporation in any jurisdiction where it
is not so qualified;
(e) Notify the Holders participating in such registration,
promptly after it shall receive notice thereof, of the date and time when
such registration statement and each post-effective amendment thereto has
become effective or a supplement to any prospectus forming a part of such
registration statement has been filed;
(f) Notify such Holders promptly of any request by the Commission
for the amending or supplementing of such registration statement or
prospectus or for additional information;
(g) Prepare and file with the Commission, promptly upon the
request of any such Holders, any amendments or supplements to such
registration statement or prospectus which, in the opinion of counsel for
such Holders, is required under the Securities Act or the rules and
regulations thereunder in connection with the distribution of the Registrable
Securities by such Holders;
(h) Prepare and file promptly with the Commission, and promptly
notify such Holders of the filing of, such amendments or supplements to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event
has occurred as the result of which any such prospectus or any other
prospectus as then in effect would include an 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;
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(i) In case any of such Holders or any underwriter for any such
Holders is required to deliver a prospectus at a time when the prospectus
then in circulation is not in compliance with the Securities Act or the rules
and regulations of the Commission, prepare promptly upon request such
amendments or supplements to such registration statement and such prospectus
as may be necessary in order for such prospectus to comply with the
requirements of the Securities Act and such rules and regulations;
(j) Advise such Holders, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such registration statement or the initiation
or threatening of any proceeding for that purpose and promptly use its best
efforts to prevent the issuance of any stop order or to obtain its withdrawal
if such stop order should be issued;
(k) Not file any registration statement or prospectus or any
amendment or supplement to such registration statement or prospectus to which
the Holders of a majority of the Registrable Securities included or to be
included in a registration have reasonably objected on the grounds that such
registration statement or prospectus or amendment or supplement thereto does
not comply in all material respects with the requirements of the Securities
Act or the rules and regulations thereunder, after having been furnished with
a copy thereof at least five (5) business days prior to the filing thereof;
provided, however, that the failure of such Holders or their counsel to
review or object to any registration statement or prospectus or any amendment
or supplement to such registration statement or prospectus shall not affect
the rights of such Holders or their respective officers, directors, partners,
legal counsel, accountants or controlling Persons or any underwriter or any
controlling Person of such underwriter under Section 6 hereof;
(l) Make available for inspection upon request by any Holder of
Registrable Securities covered by such registration statement, by any
managing underwriter of any distribution to be effected pursuant to such
registration statement and by any attorney, accountant or other agent
retained by any such Holder or any such underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause all of the Company's officers, directors and employees to supply all
information reasonably requested by any such Holder, underwriter, attorney,
accountant or agent in connection with such registration statement; and
(m) At the request of any Holder of Registrable Securities covered
by such registration statement, furnish to such Holder on the effective date
of the registration statement or, if such registration includes an
underwritten public offering, at the closing provided for in the underwriting
agreement, (i) an opinion dated such date of the counsel representing the
Company for the purposes of such registration, addressed to the underwriters,
if any, and to the Holder or Holders making such request, covering such
matters with respect to the registration statement, the prospectus and each
amendment or supplement thereto, proceedings under state and federal
securities laws, other matters relating to the Company, the securities being
registered and the offer and sale of such securities as are customarily the
subject of opinions of issuer's counsel provided to
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underwriters in underwritten public offerings, and such opinion of counsel
shall additionally cover such legal matters with respect to the registration
as such requesting Holder or Holders may reasonably request, and (ii) letters
dated each of such effective date and such closing date, from the independent
certified public accountants of the Company, addressed to the underwriters,
if any, and to the Holder or Holders making such request, stating that they
are independent certified public accountants within the meaning of the
Securities Act and dealing with such matters as the underwriters may request,
or if the offering is not underwritten that in the opinion of such
accountants the financial statements and other financial data of the Company
included in the registration statement or the prospectus or any amendment or
supplement thereto comply in all material respects with the applicable
accounting requirements of the Securities Act, and additionally covering such
other accounting and financial matters, including information as to the
period ending not more than five (5) business days prior to the date of such
letter with respect to the registration statement and prospectus, as such
requesting Holder or Holders may reasonably request.
5. EXPENSES.
(a) With respect to each inclusion of shares of Registrable
Securities in a registration statement pursuant to Section 2 or 3 hereof, the
Company agrees to bear all fees, costs and expenses of and incidental to such
registration and the public offering in connection therewith; provided,
however, that security holders participating in any such registration agree
to bear their pro rata share of the underwriting discount and commissions and
the fees and expenses of their own counsel.
(b) The fees, costs and expenses of registration to be borne as
provided in paragraph (a) above, shall include, without limitation, all
registration, filing and NASD fees, printing expenses, fees and disbursements
of counsel and accountants for the Company, fees and disbursements of counsel
for the underwriter or underwriters of such securities (if the Company and/or
selling security holders are otherwise required to bear such fees and
disbursements), all legal fees and disbursements and other expenses of
complying with state securities or blue sky laws of any jurisdictions in
which the securities to be offered are to be registered or qualified, and the
premiums and other costs of policies of insurance against liability arising
out of such public offering.
6. INDEMNIFICATION.
(a) The Company hereby agrees to indemnify and hold harmless each
Holder of Registrable Securities which are included in a registration
statement pursuant to the provisions of this Agreement and each of such
Holder's officers, directors, partners, members, legal counsel and
accountants, and each Person who controls such Holder within the meaning of
the Securities Act and any underwriter (as defined in the Securities Act) for
such Holder, and any Person who controls such underwriter within the meaning
of the Securities Act, from and against, and agrees to reimburse such Holder,
its officers, directors, partners, members, legal counsel, accountants and
controlling Persons and each such underwriter and controlling Person of such
underwriter with respect to, any and all claims, actions (actual or
threatened), demands, losses, damages, liabilities, costs and
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expenses to which such Holder, its officers, directors, partners, legal
counsel, accountants or controlling Persons, or any such underwriter or
controlling Person of such underwriter may become subject under the
Securities Act or otherwise, insofar as such claims, actions, demands,
losses, damages, liabilities, costs or expenses arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in such registration statement, any prospectus contained therein,
or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to
the extent that any such claim, action, demand, loss, damage, liability, cost
or expense is caused by an untrue statement or alleged untrue statement or
omission or alleged omission so made in strict conformity with written
information furnished by such Holder, such underwriter or such controlling
Person specifically for use in the preparation thereof.
(b) Each Holder of shares of Registrable Securities which are
included in a registration statement pursuant to the provisions of this
Agreement hereby agrees to indemnify and hold harmless the Company, its
officers, directors, legal counsel and accountants and each Person who
controls the Company within the meaning of the Securities Act, from and
against, and agrees to reimburse the Company, its officers, directors, legal
counsel, accountants and controlling Persons with respect to, any and all
claims, actions, demands, losses, damages, liabilities, costs or expenses to
which the Company, its officers, directors, legal counsel, accountants or
such controlling Persons may become subject under the Securities Act or
otherwise, insofar as such claims, actions, demands, losses, damages,
liabilities, costs or expenses are caused by any untrue or alleged untrue
statement of any material fact contained in such registration statement, any
prospectus contained therein or any amendment or supplement thereto, or are
caused by the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was so made in reliance upon and in strict conformity with written
information furnished by such Holder specifically for use in the preparation
thereof. Notwithstanding the foregoing, no Holder of Registrable Securities
shall be obligated hereunder to pay more than the net proceeds realized by it
upon its sale of Registrable Securities included in such registration
statement.
(c) Promptly after receipt by a party indemnified pursuant to the
provisions of subsection (a) or (b) of this Section 6 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim therefor is to
be made against the indemnifying party pursuant to the provisions of
subsection (a) or (b), notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 6 and shall not relieve the indemnifying
party from liability under this Section 6 unless such indemnifying party is
prejudiced by such omission. In case any such action is brought against any
indemnified party, and it notifies the indemnifying
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party of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying parties similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party; provided, however, that
if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall have the
right to select separate counsel (in which case the indemnifying party shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties). Upon the permitted assumption by the
indemnifying party of the defense of such action, and approval by the
indemnified party of counsel, the indemnifying party shall not be liable to
such indemnified party under subsection (a) or (b) for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof (other than reasonable costs of investigation) unless (i)
the indemnified party shall have employed separate counsel in connection with
the assertion of legal defenses in accordance with the proviso to the next
preceding sentence, (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time, (iii) the indemnifying party and its counsel
do not actively and vigorously pursue the defense of such action, or (iv) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party. No indemnifying
party shall be liable to an indemnified party for any settlement of any
action or claim without the consent of the indemnifying party and no
indemnifying party may unreasonably withhold its consent to any such
settlement. No indemnifying party will consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of
a release from all liability with respect to such claim or litigation.
(d) If the indemnification provided for in subsection (a) or (b)
of this Section 6 is held by a court of competent jurisdiction to be
unavailable to a party to be indemnified with respect to any claims, actions,
demands, losses, damages, liabilities, costs or expenses referred to therein,
then each indemnifying party under any such subsection, in lieu of
indemnifying such indemnified party thereunder, hereby agrees to contribute
to the amount paid or payable by such indemnified party as a result of such
claims, actions, demands, losses, damages, liabilities, costs or expenses in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions which resulted in such claims,
actions, demands, losses, damages, liabilities, costs or expenses, as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing, the amount any Holder of Registrable
Securities shall be obligated to contribute pursuant to this
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subsection (d) shall be limited to an amount equal to the per share public
offering price (less any underwriting discount and commissions) multiplied by
the number of shares of Registrable Securities sold by such Holder pursuant
to the registration statement which gives rise to such obligation to
contribute (less the aggregate amount of any damages which such Holder has
otherwise been required to pay in respect of such claim, action, demand,
loss, damage, liability, cost or expense or any substantially similar claim,
action, demand, loss, damage, liability, cost or expense arising from the
sale of such Registrable Securities).
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
hereunder from any person who was not guilty of such fraudulent
misrepresentation.
7. REPORTING REQUIREMENTS UNDER THE EXCHANGE ACT. The Company shall
timely file such information, documents and reports as the Commission may
require or prescribe under Section 13 of the Exchange Act. The Company
acknowledges and agrees that the purposes of the requirements contained in
this Section 7 are (a) to enable the Holders of Registrable Securities to
comply with the current public information requirement contained in paragraph
(c) of Rule 144 should any such Holder ever wish to dispose of any of the
Restricted Stock without registration under the Securities Act in reliance
upon Rule 144 (or any other similar exemptive provision) and (b) to qualify
the Company for the use of registration statements on Form S-3.
8. STOCKHOLDER INFORMATION. The Company may request each Holder of
Registrable Securities as to which any registration is to be effected
pursuant to this Agreement to furnish the Company with such information with
respect to such Holder and the distribution of such Registrable Securities as
the Company may from time to time reasonably request in writing and as shall
be required by law or by the Commission in connection therewith, and each
Holder of Registrable Securities as to which any registration is to be
effected pursuant to this Agreement agrees to furnish the Company with such
information.
9. FORMS. All references in this Agreement to particular forms of
registration statements are intended to include, and shall be deemed to
include, references to all successor forms which are intended to replace, or
to apply to similar transactions as, the forms herein referenced.
10. GENERAL PROVISIONS.
(a) INTEGRATION. This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof.
(b) NOTICES. All notices and other communications which are
required or permitted to be given pursuant to the terms of this Agreement
shall be in writing and shall either be personally delivered or mailed first
class, postage prepaid, registered or certified mail (return receipt
requested), to the person for whom they are intended at the address shown on
the signature pages of this Agreement for such party. Each notice or other
communication shall for all purposes of this Agreement be treated as being
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effective or having been given when delivered, if delivered personally, or,
if sent by mail, at the earlier of actual receipt or five (5) days after the
same has been deposited in the United States mail, addressed and postage paid
as aforesaid. The addresses for the purposes of this Section 10(b) may be
changed by giving written notice to all parties of such change in the manner
provided herein for giving notice. Unless and until such written notice is
received, the addresses as provided herein shall be deemed to continue in
effect for all purposes hereunder.
(c) CHOICE OF LAW. This Agreement shall be governed by and
construed in accordance with the internal laws (and not the law of conflicts
of law) of the State of Delaware.
(d) SEVERABILITY. The parties hereto agree that the terms and
provisions in this Agreement are reasonable and shall be binding and
enforceable in accordance with the terms hereof and, in any event, that the
terms and provisions of this Agreement shall be enforced to the fullest
extent permissible under law. In the event that any term or provision of
this Agreement shall for any reason by adjudged to be unenforceable or
invalid, then such unenforceable or invalid term or provision shall not
affect the enforceability or validity of the remaining terms and provisions
of this Agreement, and the parties hereto hereby agree to replace such
unenforceable or invalid term or provision with an enforceable and valid
arrangement which, in its economic effect, shall be as close as possible to
the unenforceable or invalid term or provision.
(e) EXPENSES. The Company agrees to pay and hold Xxxxxx and
Holders of the Registrable Securities harmless from liability for the payment
of (i) the fees and expenses incurred in connection with any requested waiver
of the right of Xxxxxx or the consent of Xxxxxx to contemplated acts of the
Company not otherwise permissible by the terms of this Agreement, (ii) the
reasonable fees and expenses incurred with respect to any amendment to this
Agreement proposed by the Company (whether or not the same becomes
effective), (iii) the reasonable fees and expenses incurred in respect of the
enforcement by Xxxxxx of its rights granted under this Agreement, and (iv)
all costs of the Company's performance of and compliance with this Agreement.
(f) PARTIES IN INTEREST. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective permitted successors and assigns of the parties
hereto, whether so expressed or not and, in particular, shall inure to the
benefit of and be enforceable by the Holder or Holders at the time of any of
the Registrable Securities. Subject to the immediately preceding sentence,
this Agreement shall not run to the benefit of or be enforceable by any
Person other than a party to this Agreement and its successors and assigns.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties in separate counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and the same instrument.
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(h) MODIFICATION, AMENDMENT AND WAIVER. This Agreement may be
amended only in writing with the written consent of all the Holders of the
Registrable Securities and the Company. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally or
by course of dealing, but only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, except to the extent provided in this Section 10. Specifically, but
without limiting the generality of the foregoing, the failure of Xxxxxx at
any time or times to require performance of any provision hereof by the
Company shall in no manner affect its right at a later time to enforce the
same. No waiver by any party of the breach of any term or provision
contained in this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this
Agreement.
(i) FURTHER ASSURANCES. The parties agree to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement, and the Company specifically agrees
to cooperate affirmatively with Xxxxxx, if any, to the extent reasonably
requested by Xxxxxx, to enforce the rights of Xxxxxx and its assignees
hereunder.
(j) HEADINGS. The headings of the Sections and paragraphs of this
Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
(k) GENDER AND NUMBER. As used in this Agreement, the masculine,
feminine or neuter gender, and the singular or plural, shall be deemed to
include the others whenever and wherever the context so requires.
Additionally, unless the context requires otherwise, "or" is not exclusive.
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[SIGNATURE PAGE OF REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, or caused this Agreement to be duly executed on their behalf, as
of the day and year first above written.
COMPANY:
ATC COMMUNICATIONS GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxx, Xx.
--------------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Senior Vice President
Address: ATC Communications Group, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
XXXXXX:
XXXXXX EQUITY INVESTORS III, L.P.,
a Delaware limited partnership
By: TC Equity Partners L.L.C.,
Its General Partner
By: /s/ Xxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Member
Address: Xxxxxx Capital Partners
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, X.X. 00000
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