STOCKHOLDERS AND VOTING AGREEMENT
STOCKHOLDERS AND VOTING AGREEMENT, dated as of August 25, 1999 (the
"AGREEMENT"), among Questor Partners Fund II, L.P., a Delaware limited
partnership ("FUND II"), Questor Side-by-Side Partners II, L.P., a Delaware
limited partnership (the "SIDE-BY-SIDE FUND"), and Questor Side-by-Side Partners
II 3(c)(1), L.P., a Delaware limited partnership (the "3(c)(1) FUND" and
together with Fund II and the Side-by-Side Fund, the "QUESTOR INVESTORS") and
the stockholders listed on Schedule A hereto (the "EXISTING INVESTORS").
WHEREAS, concurrently herewith, the Questor Investors are entering into the
Series F Senior Voting Convertible Preferred Stock Purchase and Registration
Rights Agreement (the "PURCHASE AGREEMENT") dated as of the date hereof by and
among Aegis Communications Group, Inc., a Delaware corporation (the "Company"),
the Questor Investors, and the Existing Investors;
WHEREAS, the Purchase Agreement provides, among other things, for (i) the
sale and issuance (the "STOCK ISSUANCE") of an aggregate of 46,750 shares of the
Company's Series F Senior Voting Convertible Preferred Stock (the "SERIES F
PREFERRED"), (ii) amendment of the Certificate of Incorporation of the Company
(A) to increase the authorized shares of capital stock of the Company from 100
million shares of Common Stock and 1 million shares of Preferred Stock to 200
million shares of Common Stock and 2 million shares of Preferred Stock and
(B) to delete Article SIXTH thereof to the extent that it provides for
classification of the Board of Directors into three separate classes (together,
the "CHARTER AMENDMENTS"), and (iii) the calling of a meeting of the Existing
Investors of the Company and the solicitation of proxies in connection with the
foregoing and the election of a new Board of Directors;
WHEREAS, capitalized terms used in this Agreement and not otherwise defined
herein shall have the respective meanings ascribed to them in the Purchase
Agreement; and
WHEREAS, the Questor Investors have required, as a condition to its entering
into the Purchase Agreement, that each Existing Investor enter into, and each
such Existing Investor has agreed to enter into, this Agreement.
NOW, THEREFORE, to induce the Questor Investors to enter into, and in
consideration of its entering into, the Purchase Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF EACH EXISTING INVESTOR. Each Existing
Investor hereby severally represents and warrants to the Questor Investors as
follows:
(a) OWNERSHIP OF SHARES. (i) Such Existing Investor is (A) the record
holder and beneficial owner of or (B) sole trustee of a trust that is the
record holder or beneficial owner of, and whose beneficiaries are the
beneficial owners (such trustee, a "TRUSTEE") of, the number of shares of
the voting stock of the Company (the "COMPANY VOTING STOCK"), set forth
opposite such Existing Investor's name on SCHEDULE A hereto (collectively,
the "EXISTING SHARES," and together with any shares of Company Voting Stock
acquired by such Existing Investor after the date hereof and prior to the
termination hereof, whether upon exercise of options or warrants, conversion
of convertible securities, purchase, exchange or otherwise, the "SHARES")
and (ii) such Existing Investor has (A) sole power of disposition, and
(B) sole voting power, in each case with respect to all of such Existing
Investor's Existing Shares, and with no restrictions on such rights, other
than pursuant to the Existing Investors Agreement dated July 9, 1998 by and
among ATC Communications Group, Inc. and the other parties enumerated
therein (the "ORIGINAL STOCKHOLDERS AGREEMENT"). On the date hereof, the
Existing Shares set forth opposite such Existing Investor's name on SCHEDULE
A constitute all of the shares of Company Voting Stock owned of record or
beneficially by such Existing Investor.
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(b) POWER; BINDING AGREEMENT. Such Existing Investor has all requisite
legal capacity, power and authority to enter into and perform all of such
Existing Investor's obligations under this Agreement. This Agreement has
been duly and validly authorized, executed and delivered by such Existing
Investor and constitutes a valid and binding agreement of such Existing
Investor, enforceable against such Existing Investor in accordance with its
terms. There is no beneficiary of, or holder of, a voting trust certificate
or other interest of any trust of which an Existing Investor is Trustee
whose consent is required for the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby. If such
Existing Investor is married and such Existing Investor's Shares constitute
community property or otherwise require spousal or other approval for this
Agreement to be legal, valid and binding, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, such Existing Investor's spouse, enforceable against such
spouse in accordance with its terms.
(c) NO CONFLICTS. No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Existing Investor and
the consummation by such Existing Investor of the transactions contemplated
hereby, and neither the execution and delivery of this Agreement by such
Existing Investor nor the consummation by such Existing Investor of the
transactions contemplated hereby nor compliance by such Existing Investor
with any of the provisions hereof shall (A) conflict with or result in any
breach of any applicable trust, partnership agreement, or other
organizational documents applicable to such Existing Investor; (B) result in
a violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of
termination, cancellation, modification, prepayment or acceleration) under
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which such
Existing Investor is a party or by which such Existing Investor or any of
such Existing Investor's properties or assets may be bound or (C) violate
any order, writ, injunction, decree, judgment, statute, rule, regulation or
governmental permit or license applicable to such Existing Investor or any
of such Existing Investor's properties or assets.
(d) ABSENCE OF LIENS. Such Existing Investor's Shares and the
certificates representing such Shares are now and at all times during the
term hereof will be held by such Existing Investor, or by a nominee or
custodian for the benefit of such Existing Investor, free and clear of all
liens, claims, security interests, proxies, voting trusts or agreements,
understandings, arrangements or any other encumbrances whatsoever, except
for any such encumbrances or proxies arising hereunder and under the
Original Stockholders Agreement.
(e) NO BROKERS. No broker, investment banker, financial adviser or
other Person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Existing Investor.
(f) REVIEW OF PURCHASE AGREEMENT. Such Existing Investor understands
and acknowledges that the Questor Investors are entering into the Purchase
Agreement in reliance upon such Existing Investor's execution and delivery
of this Agreement. Such Existing Investor has read the Purchase Agreement
carefully and fully understands the terms and provisions thereof.
2. AGREEMENT TO VOTE; PROXY.
(a) VOTING. Each Existing Investor hereby severally agrees that,
during the time this Agreement is in effect, at any meeting of the Existing
Investors of the Company, at any adjournment thereof or in any other
circumstance in which a vote, consent or approval (including any written
consent of the stockholders of the Company) of the Existing Investors of the
Company is called for, such Existing Investor shall, including by initiating
a written consent solicitation if requested by the Company or the
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Questor Investors, vote (or cause to be voted) the Shares of such Existing
Investor (i) in favor of the Stock Issuance, the Charter Amendments, the
election of six directors designated by Xxxxxx and six directors designated
by Questor, and each of the other transactions contemplated by the Purchase
Agreement and this Agreement and any actions required in furtherance hereof
and thereof; (ii) against any action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation
or agreement of the Company under the Purchase Agreement, the Existing
Investors Agreement, the Certificate or this Agreement and (iii) except as
specifically requested in writing by the Company or the Questor Investors,
in advance, against the following actions (other than the Stock Issuance and
the other transactions contemplated by the Purchase Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company or its Subsidiaries; (B) a
sale, lease or transfer of a material amount of assets of the Company or its
Subsidiaries or a reorganization, recapitalization, dissolution, liquidation
or winding up of the Company or any of its Subsidiaries; (C) any change in
the majority of the Board of Directors of the Company; (D) any change in the
present capitalization of the Company or any amendment of the Company's
Certificate of Incorporation other than as described above; (E) any other
material change in the Company's corporate structure or business; and
(F) any other action which would impede, frustrate, interfere with, delay,
postpone, discourage or materially adversely affect the Stock Issuance, the
transactions contemplated by the Purchase Agreement or this Agreement or the
contemplated economic benefits of any of the foregoing. Such Existing
Investor shall not take any action or commit to or enter into any agreement
or understanding with any Person prior to the Termination Date (as defined
in Section 7 hereof) to act in any manner inconsistent with clause (i),
(ii) or (iii) of the preceding sentence.
(b) PROXY. EACH EXISTING INVESTOR HEREBY GRANTS TO, AND APPOINTS EACH
OF THE QUESTOR INVESTORS AND EACH OF XXXXX X. XXXXXX AND XXXXXX X. XXXXXXX
AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO ANY SUCH OFFICE OF THE
QUESTOR INVESTORS, AND ANY OTHER DESIGNEE OF THE QUESTOR INVESTORS, AS SUCH
EXISTING INVESTOR'S IRREVOCABLE PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER
OF SUBSTITUTION) TO VOTE OR TAKE OTHER ACTION WITH RESPECT TO THE SHARES AS
INDICATED IN SECTION 2(a) ABOVE. EACH EXISTING INVESTOR INTENDS THIS PROXY
TO BE IRREVOCABLE AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER
ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE
THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY
SUCH EXISTING INVESTOR WITH RESPECT TO SUCH EXISTING INVESTOR'S SHARES.
NOTWITHSTANDING THE FOREGOING, THIS PROXY SHALL BE AUTOMATICALLY REVOKED
WITHOUT ANY FURTHER ACTION ON THE PART OF ANY EXISTING INVESTOR OR THE
QUESTOR INVESTOR ON THE TERMINATION DATE.
3. CERTAIN COVENANTS OF THE EXISTING INVESTORS. Except in accordance with
the terms of this Agreement, each Existing Investor hereby severally covenants
and agrees as follows:
(a) RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE; RESTRICTION
ON WITHDRAWAL. Such Existing Investor shall not, directly or indirectly:
(i) except pursuant to the terms of the Purchase Agreement and this
Agreement, and except for gifts to family members who either are signatories
to this Agreement or who, upon such gift, become signatories to this
Agreement, offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of (each, a "Disposition"), enforce or permit the
execution of the provisions of any agreement with the Company whereby the
Company may be obligated to repurchase, or enter into any other contract,
option or other arrangement or understanding with respect to, or otherwise
consent to the Disposition of, any or all of such Existing Investor's Shares
or any interest therein; (ii) except as contemplated hereby, grant any
proxies or powers of attorney, deposit any Shares into a voting trust or
enter into a voting agreement with
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respect to any Shares or (iii) take any action that would make any
representation or warranty of such Existing Investor contained herein untrue
or incorrect or have the effect of preventing or disabling such Existing
Investor from performing such Existing Investor's obligations under this
Agreement.
(b) NO TERMINATION OR CLOSURE OF TRUSTS. Such Existing Investor, if a
Trustee, shall not take any action to terminate, close or liquidate any such
trust and shall take all steps necessary to maintain the existence thereof
at least until the first to occur of (i) the Closing Date or (ii) the
Termination Date, in each case unless, in connection therewith, the Shares
held by any trust which are presently subject to the terms of this Agreement
are transferred upon termination to one or more Existing Investors and
remain subject in all respects to the terms of this Agreement.
4. FURTHER ASSURANCES. From time to time, at any party's request and
without further consideration, each other party shall execute and deliver such
additional documents and take all such further action as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
5. CERTAIN EVENTS. Each Existing Investor agrees that this Agreement and
the obligations hereunder shall attach to such Existing Investor's Shares and
shall be binding upon any Person to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including, without
limitation, such Existing Investor's heirs, guardians, administrators or
successors, or as a result of any divorce.
6. STOP TRANSFER. Each Existing Investor agrees with, and covenants to,
the Questor Investors that such Existing Investor shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Existing Investor's Shares,
unless such transfer is made in compliance with this Agreement. Each Existing
Investor agrees, with respect to any Shares in certificated form, that such
Existing Investor will tender to the Company, within ten business days after the
date hereof, the certificates representing such Shares and the Company will
inscribe upon such certificates the following legend:
"THE SHARES OF AEGIS COMMUNICATIONS, INC. (THE "COMPANY") REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDERS AND VOTING AGREEMENT
DATED AS OF AUGUST 25, 1999, AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED, EXCEPT IN ACCORDANCE THEREWITH. COPIES OF SUCH AGREEMENT
MAY BE OBTAINED AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.".
7. TERMINATION. This Agreement shall terminate as follows: (a) if the
Purchase Agreement is terminated pursuant to Section 21(a) or (b) of the
Purchase Agreement, as of the date of such termination, provided that in the
event Questor terminates the Agreement as a result of or in connection with the
failure of any condition set forth in Section 17(a) of the Purchase Agreement
caused by, resulting from or arising out of or in connection with a material
breach of the Purchase Agreement by the Company or the Existing Investors, this
Agreement shall terminate 3 months following the date of termination of the
Purchase Agreement, (b) if the Stock Issuance occurs, upon the Closing Date. The
date of termination of this Agreement is referred to herein as the "TERMINATION
DATE."
8. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; ASSIGNMENT. This Agreement (i) constitutes the
entire agreement among the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof and
(ii) shall not be assigned by operation of law or otherwise without the
prior written consent of (A) in the case of an assignment by an Existing
Investor, the Questor Investors, and (B) in the case of an assignment by the
Questor Investors, each Existing Investor.
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(b) AMENDMENTS. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto; PROVIDED, HOWEVER, that SCHEDULE A
may be supplemented by the Questor Investors without the agreement of any
other party, by adding the name and other relevant information concerning
any stockholder of the Company who agrees to be bound by the terms of this
Agreement, and thereafter such added stockholder shall be treated as an
"EXISTING INVESTOR" for all purposes of this Agreement.
(c) NOTICES. All notices and other communications under this Agreement
shall be in writing and shall be given (and shall be deemed to have been
duly given upon receipt) by delivery in person, facsimile, telex or other
standard form of telecommunications, by courier service, or by registered or
certified mail, postage prepaid, return receipt requested, addressed
if to the Questor Investors, to:
Questor Management Company
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention:
and if to an Existing Investor, to such Existing Investor's address or
facsimile number set forth in Schedule A hereto, or to such other address or
facsimile number as the Person to whom notice is given shall have previously
furnished to the others in writing in the manner set forth above.
(d) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without giving effect
to the conflicts of laws principles thereof.
(e) ENFORCEMENT. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to seek an injunction
or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement and no Existing
Investor shall oppose the granting of such relief.
(f) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which when taken together shall constitute one and the same Agreement.
(g) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(h) SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of
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 will not
affect any other provision or portion of any provision in such jurisdiction,
and this Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein.
(i) DEFINITIONS; CONSTRUCTION. For purposes of this Agreement:
(i) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Exchange Act), including
ownership pursuant to any agreement, arrangement or understanding,
whether or not in writing. Without duplicative counting of the same
securities by the same holder,
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securities beneficially owned by a Person shall include securities
beneficially owned by all other Persons with whom such Person would
constitute a "GROUP" as described in Rule 13d-5 under the Exchange Act.
(ii) "PERSON" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust,
unincorporated organization or other entity.
(iii) In the event of a stock dividend or distribution, or any change
in the Company's Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term
"Shares" shall be deemed to refer to and include the Shares as well as
all such stock dividends and distributions related to the Shares and any
shares into which or for which any or all of the Shares may be changed or
exchanged.
IN WITNESS WHEREOF, the Company, Questor Investors and each Existing
Investor have caused this Agreement to be duly executed as of the day and year
first above written.
THE QUESTOR INVESTORS:
QUESTOR PARTNERS FUND II, L.P.
a Delaware limited partnership
By: Questor General Partner II, L.P.,
its General Partner
By: Questor Principals II, Inc.,
its General Partner
By:
-----------------------------------
Name:
Title:
Address: c/o Organization Services, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
With a copy to:
Questor Management Company
Address: 0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
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QUESTOR SIDE-BY-SIDE PARTNERS II, L.P.
a Delaware limited partnership
By: Questor Principals II, Inc.
By:
-----------------------------------
Name:
Title:
Address: c/o Organization Services, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
With a copy to:
Questor Management Company
Address: 0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
QUESTOR SIDE-BY-SIDE
PARTNERS II 3(C), L.P.
a Delaware limited partnership
By: Questor Principals II, Inc.
By:
-----------------------------------
Name:
Title:
Address: c/o Organization Services, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
With a copy to:
Questor Management Company
Address: 0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
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THE EXISTING INVESTORS:
TC CO-INVESTORS, LLC
a Delaware limited liability company
By: TC Management Partners, LLC
a Delaware limited liability company,
its General Partner
By:
-----------------------------------
Name:
Title:
Address: 0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
XXXXXX EQUITY INVESTORS III, L.P.
a Delaware limited partnership
By: TC Equity Partners, LLC
a Delaware limited liability company,
its General Partner
By:
-----------------------------------
Name:
Title:
Address: 0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
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ITC SERVICES COMPANY
a Delaware corporation
By:
-----------------------------------
Name:
Title:
Address:
XXXXXX XXXXX
By:
-----------------------------------
Name:
Title:
Address:
TRUSTS CREATED BY XXXXXX XXXXX AS BOTH
GRANTOR AND TRUSTEE UNDER ARTICLE
FOURTH OF THE XXXXXX XXXXX 1995
GRANTOR RETAINED ANNUITY TRUST
a New Jersey trust
By:
-----------------------------------
Name:
Title:
Address:
CODINVEST LIMITED
a British Virgin Island corporation
By:
-----------------------------------
Name:
Title:
Address:
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SCHEDULE A
EXISTING INVESTOR
NAME AND ADDRESS: CLASS OF SHARES NUMBER OF SHARES* VOTING POWER**
--------------------------------------------------------- ------------------ ------------------ ---------------
XXXXXX EQUITY INVESTORS III, L.P......................... Common Stock 19,224,493 19,224,493
0000 Xxxxxxxxxxxx Xxx., XX
Xxxxx 0000 Series D and E 110,155 -- (a)
Xxxxxxxxxx, XX 00000 Convertible
Preferred Stock
TC CO-INVESTORS III, L.P................................. Common Stock 153,359 153,359
0000 Xxxxxxxxxxxx Xxx., XX
Xxxxx 0000
Xxxxxxxxxx, XX 00000
XXXXXX XXXXX............................................. Common Stock 2,989,135 2,989,135
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Series E 5,106 -- (a)
Convertible
Preferred Stock
XXXXXX XXXXX 1995 GRANTOR
RETAINED ANNUITY TRUST................................. Common Stock 707,525 707,525
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Series E 1,211 -- (a)
Convertible
Preferred Stock
ITC SERVICE COMPANY...................................... Common Stock 2,835,123 2,835,123
0000 X.X. Xxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000 Series E 4,846 -- (a)
Convertible
Preferred Stock
CODINVEST LIMITED........................................ Common Stock 2,200,000 2,200,000
Road Town
Tortola, British Virgin Islands
------------------------
(a) The Series D and E Preferred Stock is non-voting.
* If the Existing Investor listed is a trustee rather than the direct record
and beneficial owner of any of the shares, indicate the number of shares
that are held in the capacity of trustee.
** Indicate number of votes, in the aggregate, which may be cast at a meeting
of stockholders of the Company.
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