Exhibit 10.6
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT dated as of October 23, 1996 is
made by and between Esquire Communications Ltd., a Delaware corporation (the
"COMPANY"), Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P., an Illinois limited
partnership ("GTCR") and Antares Leveraged Capital Corp., a Delaware corporation
("Antares").
GTCR, Antares and the Company are parties to a Purchase
Agreement dated October 23, 1996 (the "PURCHASE AGREEMENT"). In order to induce
GTCR and Antares to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
The Company and various other investors are parties to a
Letter Agreement dated October 23, 1996 by which such investors agreed to modify
their existing registration rights relating to the Common Stock they currently
hold or may hold thereafter (the "OTHER REGISTRABLE SECURITIES") to conform to
certain of the terms hereof. Unless otherwise provided in this Agreement,
capitalized terms used herein shall have the meanings set forth in paragraph 9
hereof.
The parties to this Agreement hereby agree as follows:
1. GTCR DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time the holders of a majority of the
GTCR Registrable Securities may request registration under the Securities Act of
all or part of their GTCR Registrable Securities on Form S-1, Form SB-1, Form
S-2 or any similar long-form registration ("LONG-FORM REGISTRATIONS") or, if
available, on Form S-3 or any similar short-form registration ("SHORT-FORM
REGISTRATIONS"). Each request for a GTCR Demand Registration shall specify the
approximate number of GTCR Registrable Securities requested to be registered and
the anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of Registrable Securities and,
subject to paragraph 1(d) below, will include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 15 days after the receipt of the Company's
notice. All registrations requested pursuant to this paragraph 1(a) are referred
to herein as "GTCR DEMAND REGISTRATIONS."
(b) LONG-FORM REGISTRATIONS. The holders of a majority of the GTCR
Registrable Securities will be entitled to request two (2) Long-Form
Registrations in which the Company will pay all Registration Expenses (as
defined below in paragraph 5); provided that the GTCR Registrable Securities
sought to be registered in any Long-Form Registration have a minimum anticipated
aggregate net offering price of $5 million. A registration will not count as one
of the permitted Long-Form Registrations (i) if it does not become effective or
(ii) if a Cutback (as defined below) has occurred; provided that in any event
the Company will pay all Registration Expenses in connection with any
registration initiated as a Long-Form Registration whether or not it has become
effective; provided further, however, that in the event that two Long-Form
Registrations have been withdrawn or abandoned by GTCR, GTCR shall be
responsible for paying the Registration Expenses in connection with any
subsequent Long-Form Registration which is a GTCR Demand Registration. All
Long-Form Registrations shall be underwritten registrations.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form Registrations
provided pursuant to paragraph 1(b), the holders of a majority of the GTCR
Registrable Securities will be entitled to request one (1) Short-Form
Registration per calendar year in which the Company will pay all Registration
Expenses; provided that the GTCR Registrable Securities sought to be registered
in any Short-Form Registration have a minimum anticipated aggregate net offering
price of $1 million. A Short-Form Registration will not count as a permitted
Short-Form Registration unless it has become effective. GTCR Demand
Registrations will be Short-Form Registrations whenever the Company is permitted
to use any applicable short form. The Company will use its best efforts to make
Short-Form Registrations available for the sale of GTCR Registrable Securities.
(d) PRIORITY ON DEMAND REGISTRATIONS. If a GTCR Demand Registration is an
underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and other
securities requested to be included in such offering exceeds the number of
Registrable Securities and other securities, if any, which can be sold therein
without adversely affecting the marketability of the offering, the Company will
include in such registration (i) FIRST, the number of Registrable Securities and
Other Registrable Securities requested to be included which in the opinion of
such underwriters can be sold without adverse effect, pro rata among the
respective holders thereof on the basis of the number of Total Registrable
Securities owned by each such holder (if less than 100% of the Registrable
Securities sought to be registered, a "CUTBACK"), (ii) SECOND, any securities
the Company is required to include pursuant to the Purchase Options, (iii)
THIRD, any securities held by persons other than the holders of Registrable
Securities or Other Registrable Securities which the Company is required to
include pursuant to registration rights granted by the Company prior to the date
hereof, and (iv) FOURTH, other securities requested to be included in such GTCR
Demand Registration, pro rata among the holders of such securities on the basis
of the number of shares of such securities owned by each such holder.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company will not be obligated
to effect any GTCR Demand Registration within six months after the effective
date of a previous GTCR Demand Registration. The Company may postpone for up to
six months (from the date of the request) the filing or the effectiveness of a
registration statement for a GTCR Demand Registration if the Company believes
that such GTCR Demand Registration would reasonably be expected to have an
adverse effect on any proposal or plan by the Company or any of its Subsidiaries
to engage in any acquisition of stock or assets (other than in the ordinary
course of business) or any merger, consolidation, tender offer or similar
transaction; provided, however, that in such event, the holders of GTCR
Registrable Securities initially requesting such GTCR Demand Registration will
be entitled to withdraw such request and, if such request is withdrawn, such
GTCR Demand Registration will not count as one of the permitted GTCR Demand
Registrations hereunder and the Company will pay all Registration Expenses in
connection with such registration.
(f) SELECTION OF UNDERWRITERS. The holders of a majority of the GTCR
Registrable Securities included in any GTCR Demand Registration will have the
right to select the investment banker(s) and manager(s) to administer the
offering, subject to the Company's approval which will not be unreasonably
withheld.
(g) OTHER REGISTRATION RIGHTS. Except as provided in this Agreement, in
agreements in effect on the date hereof, or pursuant to acquisitions of the
assets or the stock of another entity, the Company will not grant to any Persons
the right to request the Company to register any equity securities of the
Company, or any securities convertible or exchangeable into or exercisable for
such securities, without the prior written consent of the holders of a majority
of the GTCR Registrable Securities.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register any of
its equity securities under the Securities Act (other than pursuant to a
registration on Form S-4 or S-8 or any successor or similar forms) and the
registration form to be used may be used for the registration of Registrable
Securities (a "PIGGYBACK REGISTRATION"), whether or not for sale for its own
account, the Company will give prompt written notice to all holders of
Registrable Securities of its intention to effect such a registration and will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing (with a copy to each holder of
Registrable Securities requesting registration) that in their opinion the number
of securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the marketability
of such offering, the Company will include in such registration (I) FIRST, the
securities the Company proposes to sell; (ii) SECOND, any securities the Company
is required to include pursuant to the Purchase Options, (iii) THIRD, any
securities held by persons other than the holders of Registrable Securities or
Other Registrable Securities which the Company is required to include pursuant
to registration rights granted by the Company prior to the date hereof, (iv)
FOURTH, the number of Registrable Securities and Other Registrable Securities
requested to be included, pro rata among the respective holders thereof on the
basis of the number of Total Registrable Securities owned by each such holder;
and (v) FIFTH, other securities requested to be included in such registration
pro rata among the holders of such securities on the basis of the number of
shares of such securities owned by each such holder.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing (with a
copy to each holder of Registrable Securities requesting registration) that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) FIRST, the securities requested to be included therein
by the holders requesting such registration, pro rata among the holders of such
securities on the basis of the number of shares owned by each such holder;
provided that if such registration is demanded by a holder of GTCR Registrable
Securities or Other Registrable Securities, then this clause (i) shall not be
applicable and priority shall be determined as set forth in paragraph 1(d); (ii)
SECOND, any securities the Company is required to include pursuant to the
Purchase Options, (iii) THIRD, any securities held by persons other than the
holders of Registrable Securities or Other Registrable Securities which the
Company is required to include pursuant to registration rights granted by the
Company prior to the date hereof, (iv) FOURTH, the number of Registrable
Securities and Other Registrable Securities requested to be included, pro rata
among the respective holders thereof on the basis of the number of Total
Registrable Securities owned by each such holder; and (v) FIFTH, other
securities requested to be included in such registration pro-rata among the
holders of such securities on the basis of the number of shares of such
securities owned by each such holder.
3. HOLDBACK AGREEMENTS.
(a) To the extent not inconsistent with applicable law, each holder of
Registrable Securities agrees not to effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities, options or rights convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 90-day
period beginning on the effective date of any underwritten public offering of
the Company's common stock (including Demand and Piggyback Registrations)
(except as part of such underwritten registration), unless the underwriters
managing the registered public offering otherwise agree.
(b) The Company (i) agrees not to effect any public sale or distribution of
its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of any underwritten public
offering of the Company's common stock (including GTCR Demand and Piggyback
Registrations) (except as part of such underwritten registration or pursuant to
registrations on Form S-4 or S-8 or any successor form), unless the underwriters
managing the registered public offering otherwise agree and (ii) shall cause
each holder of its Common Stock, or any securities convertible into or
exchangeable or exercisable for Common Stock, purchased from the Company at any
time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any distribution (including notes pursuant to
Rule 144) or any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless the underwriters
managing the registered public offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof and pursuant thereto the Company will as expeditiously as
possible:
(a) prepare and (within 60 days after the end of the period within which
requests for registration may be given to the Company) file with the Securities
and Exchange Commission a registration statement with respect to such
Registrable Securities and thereafter use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel selected by the holders of a majority of
the Registrable Securities covered by such registration statement copies of all
such documents proposed to be filed, which documents will be subject to review
of such counsel);
(b) prepare and file with the Securities and Exchange Commission such
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 either (i) not less than six months (subject
to extension pursuant to paragraph 7(b)) or, if such registration statement
relates to an underwritten offering, such longer period as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in
connection with sales of Registrable Securities by an underwriter or dealer or
(ii) such shorter period as will terminate when all of the securities covered by
such registration statement have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement (but in any event not before the expiration of any
longer period required under the Securities Act), and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement;
(c) furnish to each seller of Registrable Securities such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use its best efforts to register or qualify such Registrable Securities
under such other securities or blue sky laws of such jurisdictions as any seller
reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon the discovery of the happening of any event as
a result of which, the prospectus included in such registration statement
contains an untrue statement of a material fact or omits any fact necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made, and, at the request of any such seller, the Company
will prepare and furnish to such seller a reasonable number of copies of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made;
(f) cause all such Registrable Securities to be listed on each securities
exchange or Nasdaq Stock Market on which similar securities issued by the
Company are then listed;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting agreements
in customary form) and take all such other actions as the holders of a majority
of the Registrable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities;
(i) make available for inspection by any seller of Registrable Securities,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules and
regulations of the Securities and Exchange Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order; and
(l) obtain a comfort letter, dated the effective date of such registration
statement (and, if such registration includes an underwritten public offering,
dated the date of the closing under the underwriting agreement), signed by the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by comfort letters as the holders of a
majority of the Registrable Securities being sold reasonably request (provided
that such Registrable Securities constitute at least 10% of the securities
covered by such registration statement).
The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing.
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, and fees and disbursements of counsel
for the Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "REGISTRATION EXPENSES"), will be borne
as provided in this Agreement, except that the Company will, in any event, pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any annual audit or quarterly review, the expense of any liability
insurance and the expenses and fees for listing the securities to be registered
on each securities exchange on which similar securities issued by the Company
are then listed or on the NASD automated quotation system.
(b) In connection with each GTCR Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable Securities
covered by such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration.
(c) To the extent Registration Expenses are not required to be paid by the
Company, each holder of securities included in any registration hereunder will
pay those Registration Expenses allocable to the registration of such holder's
securities so included, and any Registration Expenses not so allocable will be
borne by all sellers of securities included in such registration in proportion
to the aggregate selling price of the securities to be so registered.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless, to the full extent
permitted by law, each holder of Registrable Securities, its officers,
directors, agents, and employees and each Person who controls such holder
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities, joint or several, together with reasonable costs and expenses
(including reasonable attorney's fees), to which such indemnified party may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon (i) any untrue or
alleged untrue statement of material fact contained (A) in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or (B) in any application or other document or communication
(in this paragraph 6 collectively called an "application") executed by or on
behalf of the Company or based upon written information furnished by or on
behalf of the Company filed in any jurisdiction in order to qualify any
securities covered by such registration statement under the "blue sky" or
securities laws thereof, or (ii) any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and the Company will reimburse such holder and each such
director, officer and controlling Person for any legal or any other expenses
incurred by them in connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue statement, or
omission or alleged omission, made in such registration statement, any such
prospectus or preliminary prospectus or any amendment or supplement thereto, or
in any application, in reliance upon, and in conformity with, written
information prepared and furnished to the Company by such holder expressly for
use therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company will indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder 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 full extent permitted by law, will indemnify and hold
harmless the other holders of Registrable Securities and the Company, and their
respective directors, officers, agents and employees and each other Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities, joint or several, together with reasonable
costs and expenses (including reasonable attorney's fees), to which such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon (i) any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or in any application or (ii) 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 omission is made in such registration statement,
any such prospectus or preliminary prospectus or any amendment or supplement
thereto, or in any application, in reliance upon and in conformity with written
information prepared and furnished to the Company by such holder expressly for
use therein, and such holder will reimburse the Company and each such other
indemnified party for any legal or any other expenses incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, however, that the obligation to indemnify will
be individual, not joint and several, to each holder and will be limited to the
net amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) 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. If such defense is assumed, 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). 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.
(d) The indemnifying party shall not, except with the approval of each
indemnified party, 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 each indemnified party of a release from all liability
in respect to such claim or litigation without any payment or consideration
provided by such indemnified party.
(e) If the indemnification provided for in this paragraph 6 is unavailable
to or is insufficient to hold harmless an indemnified party under the provisions
above in respect to any losses, claims, damages or liabilities referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect not only the
relative benefits received by the Company on the one hand and the sellers of
Registrable Securities and any other sellers participating in the registration
statement on the other from the sale of Registrable Securities pursuant to the
registered offering of securities as to which indemnity is sought but also the
relative fault of the indemnified party and the indemnifying party as well as
any other relevant equitable considerations or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
sellers of Registrable Securities and any other sellers participating in the
registration statement on the other in connection with the registration
statement on the other in connection with the statement or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the sellers of Registrable Securities and any other sellers
participating in the registration statement on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) to the Company bear to the total net proceeds from the
offering (before deducting expenses) to the sellers of Registrable Securities
and any other sellers participating in the registration statement. The relative
fault of the Company on the one hand and of the sellers of Registrable
Securities and any other sellers participating in the registration statement on
the other shall be determined by reference to, among other things, whether the
untrue or alleged omission to state a material fact relates to information
supplied by the Company or by the sellers of Registrable Securities or other
sellers participating in the registration statement and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the sellers of Registrable Securities agree that it would
not be just and equitable if contribution pursuant to this paragraph 6 were
determined by pro rata allocation (even if the sellers of Registrable Securities
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 the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
paragraph 6, no seller of Registrable Securities shall be required to contribute
any amount in excess of the net proceeds received by such seller from the sale
of Registrable Securities covered by the registration statement filed pursuant
hereto. 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.
(f) The indemnification and contribution by any such party provided for
under this Agreement shall be in addition to any other rights to indemnification
or contribution which any indemnified party may have pursuant to law or contract
and will remain in full force and effect regardless of any investigation made or
omitted 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.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any over-allotment or "green shoe" option
requested by the managing underwriter(s), provided that no holder of Registrable
Securities will be required to sell more than the number of Registrable
Securities that such holder has requested the Company to include in any
registration) and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(b) Each Person that is participating in any registration hereunder agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in paragraph 4(e) above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by such paragraph 4(e). In
the event the Company shall give any such notice, the applicable time period
mentioned in paragraph 4(b) during which a Registration Statement is to remain
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to this paragraph to
and including the date when each seller of a Registrable Security covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by paragraph 4(e).
8. CURRENT PUBLIC INFORMATION. At all times after the Company has filed a
registration statement with the Securities and Exchange Commission pursuant to
the requirements of either the Securities Act or the Securities Exchange Act,
the Company will file all reports required to be filed by it under the
Securities Act and the Securities Exchange Act and the rules and regulations
adopted by the Securities and Exchange Commission thereunder, and will take such
further action as any holder or holders of Registrable Securities may reasonably
request, all to the extent required to enable such holders to sell Registrable
Securities pursuant to Rule 144 adopted by the Securities and Exchange
Commission under the Securities Act (as such rule may be amended from time to
time) or any similar rule or regulation hereafter adopted by the Securities and
Exchange Commission.
9. DEFINITIONS.
"ANTARES REGISTRABLE SECURITIES" means (i) any shares of Common Stock
issued or issuable upon conversion of the Preferred Stock issued to Antares
pursuant to the Purchase Agreement, (ii) any shares of Common Stock otherwise
acquired by Antares, and (iii) any shares of Common Stock issued or issuable
directly or indirectly with respect to the securities referred to in clauses
(i)or (ii) above by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization, including a recapitalization or exchange. For purposes of this
Agreement, a Person will be deemed to be a holder of Antares Registrable
Securities whenever such Person has the right to acquire directly or indirectly
such Antares Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any, restrictions
or limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"COMMON STOCK" means the Common Stock, par value $.01 per share, of the
Company.
"GTCR REGISTRABLE SECURITIES" means (i) any shares of Common Stock issued
or issuable upon conversion of the Preferred Stock issued to GTCR pursuant to
the Purchase Agreement or thereafter acquired by GTCR, (ii) any shares of Common
Stock otherwise acquired by GTCR, and (iii) any shares of Common Stock issued or
issuable directly or indirectly with respect to the securities referred to in
clauses (i)or (ii) above by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization, including a recapitalization or exchange. For purposes
of this Agreement, a Person will be deemed to be a holder of GTCR Registrable
Securities whenever such Person has the right to acquire directly or indirectly
such GTCR Registrable Securities (upon conversion or exercise in connection with
a transfer of securities or otherwise, but disregarding any, restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"PERSON" means an individual, a partnership, a joint venture, an
association, a joint stock company, a corporation, a limited liability company,
a trust, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PREFERRED STOCK" means the Series A Convertible Preferred Stock, par value
$.01 per share, of the Company.
"PURCHASE OPTIONS" means the Purchase Options dated May 18, 1993 with the
various parties thereto to purchase an aggregate of 125,000 shares of Common
Stock and 125,000 warrants to purchase Common Stock.
"REGISTRABLE SECURITIES" means GTCR Registrable Securities and Antares
Registrable Securities. As to any particular shares constituting Registrable
Securities, such shares will cease to be Registrable Securities when they (x)
have been effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, (y) sold to the public
pursuant to Rule 144 (or by similar provision then in force) under the
Securities Act or (z) have become eligible to be sold without restrictions or
volume limitations.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"SECURITIES AND EXCHANGE COMMISSION" includes any governmental body or
agency succeeding to the functions thereof.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar federal law then in force.
"TOTAL REGISTRABLE SECURITIES" means the Registrable Securities plus the
Other Registrable Securities.
Unless otherwise stated, other capitalized terms contained herein have the
meanings set forth in the Purchase Agreement.
10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not hereafter enter into
any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company will not take
any action, or permit any change to occur, with respect to its securities which
would materially and adversely affect the ability of the holders of Registrable
Securities to include such Registrable Securities in a registration undertaken
pursuant to this Agreement or which would adversely affect the marketability of
such Registrable Securities in any such registration.
(c) REMEDIES. Any Person having rights under any provisions of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party hereto shall have the right
to injunctive relief, in addition to all of its other rights and remedies at law
or in equity, to enforce the provisions of this Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of a majority of the Registrable
Securities; provided, however, that in the event that such amendment or waiver
would treat a holder or group of holders of Registrable Securities materially
and adversely differently from any other holders of Registrable Securities, then
such amendment or waiver will require the consent of such holder or the holders
of a majority of the Registrable Securities of such group materially adversely
treated.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the benefit
of the holders of Registrable Securities (or any portion thereof) as such shall
be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities (or of such portion thereof).
(f) SEVERABILITY. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
(g) COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(i) GOVERNING LAW. The corporate law of the State of Delaware shall govern
all issues and questions concerning the relative rights and obligations of the
Company and its stockholders. All other issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of New York or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York. In furtherance of the foregoing,
the internal law of the State of New York shall control the interpretation and
construction of this Agreement, even though under that jurisdiction's choice of
law or conflict of law analysis, the substantive law of some other jurisdiction
would ordinarily apply.
(j) NOTICES. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when personally delivered or
received by certified mail, return receipt requested, or sent by guaranteed
overnight courier service. Such notices, demands and other communications will
be sent to the GTCR at the address indicated below and to any subsequent holder
of Registrable Securities at such address as indicated by the Company's records,
or at such address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party, and to the
Company at the address indicated below:
IF TO THE COMPANY:
Esquire Communications, Ltd.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
WITH A COPY TO:
Stroock & Stroock & Xxxxx
0 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
IF TO GTCR:
Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P.
c/o Golder, Thoma, Cressey, Rauner, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
WITH A COPY TO:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxxxxx
IF TO ANTARES:
Antares Leveraged Capital Corp.
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
WITH A COPY TO:
Katten, Muchin & Zavis
000 Xxxx Xxxxxx, xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
IN WITNESS WHEREOF, the parties have executed this
Registration Agreement on the day and year first above written.
ESQUIRE COMMUNICATIONS LTD.
By:/s/
Its: Chairman of the Board
GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV, L.P.
By: GTCR IV, L.P., General Partner
By: Golder, Thoma, Cressey, Rauner, Inc.
Its: General Partner
By: /s/
Its: Principal
[Continuation of Registration Agreement Signature Page]
ANTARES LEVERAGED CAPITAL CORP.
By: /s/
Its: Director
