Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of September 28, 2001, among RMH Teleservices, Inc., a Pennsylvania
corporation (the "Company"), the individuals and entities listed on Schedule 1
hereto (each a "Purchaser" and, collectively, the "Purchasers"), and ThinkEquity
Partners, LLC, a Delaware limited liability company (the "Agent").
RECITALS:
WHEREAS, the Purchasers and the Company have executed the Stock Purchase
Agreement (the "Purchase Agreement") of even date herewith pursuant to which the
Purchasers are purchasing shares of the Company's Common Stock (defined below)
and Warrants (capitalized terms used but not otherwise defined herein shall have
the meanings given them in the Purchase Agreement);
WHEREAS, the Company and the Agent have executed a Letter of Intent dated
as of September 24, 2001 (the "Letter of Intent"); and
WHEREAS, in connection with the Purchase Agreement and the Letter of Intent
the parties desire to provide certain registration rights and benefits with
respect to the Registrable Securities (as defined below).
NOW, THEREFORE, in consideration of the respective covenants and agreements
contained herein, and for other valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Specific Definitions. As used in this Agreement, the following terms
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shall have the meanings set forth or as referenced below:
"Agent's Warrant" means the warrant issued to the Agent in connection with
the closing of the transactions contemplated by the Stock Purchase Agreement.
"Common Stock" means the Company's common stock, no par value per share.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Form S-3" means such form under the Securities Act in effect on the date
hereof or any successor registration form under the Securities Act subsequently
adopted by the SEC that permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
"Holder" means a Purchaser, the Agent and any other person owning of record
Registrable Securities that have not been sold to the public, or any assignee of
record of such Registrable Securities in accordance with Article 2.
"Purchasers' Warrant" means the Warrants issued to the Purchasers in
connection with the closing of the transactions contemplated by the Stock
Purchase Agreement.
"Register," "Registered," and "Registration" mean a registration effected
by preparing and filing a Registration Statement in compliance with the
Securities Act, and the declaration or ordering by the SEC of effectiveness of
such Registration Statement.
"Registrable Securities" means, at any time, the (i) shares of Common Stock
issued pursuant to the Purchase Agreement, (ii) shares of Common Stock issued
pursuant to or in respect of the Agent's Warrant (the "Agent's Warrant Shares"),
and (iii) shares of Common Stock issued pursuant to or in respect of the
Purchasers' Warrant, plus (iv) shares of Common Stock (or other securities) that
are issued to the Holders in respect of shares described in clauses (i) through
(iii) above or in any reclassification, share combination, share subdivision,
share dividend, share exchange, merger, consolidation or similar transaction or
event. Notwithstanding the foregoing, Registrable Securities shall not include
any securities sold by a person to the public either pursuant to a Registration
Statement or Rule 144 under the Securities Act or sold in a private transaction
in which the transferor's rights under Article 2 of this Agreement are not
assigned.
"Registration Expenses" means all expenses incurred by the Company in
complying with Article 2 hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and
accountants for the Company, reasonable fees and disbursements of a single
special counsel for the Holders of Registrable Securities, fees and
disbursements of counsel for the underwriter or underwriters of such securities
(if the Company and/or the Holders are required to bear such fees and
disbursements), all internal Company expenses, 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 (if any) arising out of such public offering, but excluding any
Selling Expenses.
"Registration Statement" means any Registration Statement filed by the
Company with the SEC for a public offering and sale of Common Stock (other than
a Registration
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Statement on Form S-8 or Form S-4, or their successors, or any other form for a
similar purpose).
"Rule 144" means Rule 144 under the Securities Act, as such rule may be
amended from time to time, or any similar successor rule.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Selling Expenses" means all underwriting discounts and commissions,
transfer taxes, filing fees, any and all fees, commission, discounts or similar
payments made to any brokers or dealers, and any fees and disbursements of
counsel, accountant or any other advisor to the Purchasers (other than counsel
referred to in the definition of Registration Expenses above) applicable to a
sale of Registrable Securities.
"Stock Purchase Agreement" means the Stock Purchase Agreement, dated as of
September 28, 2001, by and among the Company and the Investors listed on
Schedule A thereto.
"Termination Event" means that (a) prior to the Registration Statement
being declared effective, either (i) the Common Stock is suspended from trading
for 5 or more consecutive trading days other than under a general suspension of
trading on the market or markets on which the Company's Common Stock is traded,
(ii) the Registrable Securities have not been listed and authorized for trading
on the Nasdaq National Market, or (iii) the Common Stock is no longer listed on
Nasdaq, AMEX, or NYSE, or (b) the Registration Statement has not been declared
effective within 180 days of Closing, and such holdup is not due to backlog or
other delay at or by the SEC unrelated to any action or inaction by the Company.
ARTICLE 2
REGISTRATION RIGHTS
2.1 Required Registrations.
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(a) The Company shall within 30 days of the Closing Date file with the SEC
a Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering the sale of all of the Registrable Securities. The
Company shall use its best efforts to cause such Registration Statement to be
declared effective under the Securities Act within 90 days of the Closing. In
the event that the Registration Statement is not declared effective within 90
days of the date of the Closing, and such holdup is not due to any Purchaser's
failure to provide company with information necessary to complete the
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Registration Statement by the filing date, the Company shall, on the 91st day
following the Closing and each 30th day thereafter, issue to each of the
Purchasers their ratable portion (based on the percentage of the Shares then
owned by them) of additional Warrants to purchase an aggregate of 5% of the
shares purchased hereunder of Common Stock (subject to equitable adjustment to
reflect any subdivision or combination of the Company's Common Stock or the
payment of dividends payable in Common Stock or any other event in which such
adjustment is reasonably necessary to protect the rights of the Purchasers) (the
"Additional Warrants"), until either the sale of the Shares is registered or
there has occurred a Termination Event. Notwithstanding the foregoing, the total
number of Additional Warrants paid to each Investor pursuant to this Section
2.1(a) plus the number of Warrants purchased by such Investor at Closing shall
in no event exceed the number of shares of Common Stock purchased by such
Investor at Closing.
(b) The Registration Statement shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Securities for resales by
holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Company shall not permit
any securities other than the Registrable Securities to be included in any
Registration Statement pursuant to which Registrable Securities are registered
without the consent of the Purchasers. The Company shall not grant any
registration rights to any party other than the Purchasers prior to such time as
the Registration Statement permitting registration of the Registrable Securities
for resale has been declared effective by the SEC, and registration rights that
are subordinate to the registration rights of the Purchasers and the Agent
granted hereunder; provided however, that the Company may grant registration
rights to Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxx X. Xxxxxx,
Xxxxx X. Xxxxxx, Xxxxxx Xxxxxx and Xxxxxx Xxxxxx with respect to the 1,818,812
shares of Common Stock purchased by such persons pursuant to the Stock Purchase
Agreement, dated as of March 30, 2001, between the Company and such persons,
and/or register such 1,818,812 shares at any time, without the prior consent or
approval of the Holders. The Company shall use its best efforts to keep the
Registration Statement continuously effective under the Securities Act until the
date which is two (2) years from the date of filing (the "Effectiveness Period")
or such shorter period ending when all Registrable Securities covered by the
Registration (i) Statement have been sold in the manner set forth and as
contemplated in the Registration Statement or (ii) may be sold without
limitation under Rule 144(k).
(c) If at any time prior to September 28, 2006 that the Registrable
Securities are not otherwise registered for sale, the Company proposes to
register any Common Stock under the Securities Act (other than in connection
with a business combination transaction or an employee benefit plan), and the
registration form to be used may be used for the registration of Registrable
Securities, it will give prompt written notice to the Agent of its intention to
do so and of the Agent's rights hereunder. Upon the written request of the Agent
made within 15 days after the receipt of any such notice (which request shall
specify the number of Agent's Warrant Shares intended to be disposed of by
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the Agent and the intended method or methods of disposition thereof), the
Company will use its best efforts to effect the registration under the
Securities Act of all such Agent's Warrant Shares in accordance with such
intended method or methods of disposition.
(d) The Company agrees that, at any time but no more than once, upon the
request of the Agent, it will promptly file a Registration Statement (subject to
the requirements of Section 2.1(b)) with the SEC under the Securities Act for
sale in an underwritten public offering or otherwise the approximate number of
shares of Agent's Warrant Shares specified in such request. Such request shall
also specify the intended method or methods of disposition of such Registered
Shares. Notwithstanding the foregoing, the Company's obligations to file (but
not its obligations to prepare) a Registration Statement pursuant to this
Section 2.1(d) may be suspended upon written notice to the Holders for up to 30
days if: (i) the fulfillment of such obligations would require the Company to
make a disclosure that would, in the reasonable good faith judgment of the
Company's board of directors, be detrimental to the Company and premature, or
(ii) the Company shall determine in good faith that such an offering will
materially interfere with a pending or contemplated financing, merger, sale of
assets, recapitalization or other similar corporate action of the Company and
the Company shall have furnished to the Agent an officers' certificate to that
effect. Such obligations shall be reinstated upon the expiration of such 30-day
period or, if earlier: (x) in the case of clause (i) above, upon the making of
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such disclosure by the Company (or, if earlier, when such disclosure would
either no longer be necessary for the fulfillment of such obligations or no
longer be detrimental); or (y) in the case of clause (ii) above, not later than
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30 days from the date of the request of the Agent under this Section 2.1(d).
(e) After receipt of notice of a requested registration pursuant to Section
2.1(d), the Company shall not initiate, without the consent of the Agent, a
registration of any of its securities for its own account until 90 days after
such registration has been terminated or declared effective (unless advised by
the managing underwriter that a longer period, not to exceed 180 days, is
required, or such shorter period as the managing underwriter may agree).
(f) The Agent shall have the right to designate the managing underwriters,
which shall be reasonably satisfactory to the Company, for any underwritten
public offering of Registrable Securities pursuant to this Section 2.1
2.2 Expenses of Registration. All Registration Expenses incurred in connection
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with any registration under Section 2.1 shall be borne by the Company, and
Company shall reimburse the Purchasers for out-of-pocket expenses, including
legal fees and due diligence expenses in accordance with the terms of Section
7.2 of the Stock Purchase Agreement. All Selling Expenses incurred in
connection with any such registration shall be borne by the Holder of the
securities so registered incurring such expense, unless all Holders have
consented to the Selling Expenses, in which case, such
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Selling Expenses shall be borne by the Holders pro rata on the basis of the
number of shares so registered.
2.3 Obligations of the Company. Whenever required to effect the
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registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the SEC a Registration Statement on Form S-3, or
on such form as is then available to the Company in connection with such
registration, with respect to such Registrable Securities and use its best
efforts to cause such Registration Statement to become effective and, upon the
request of the Holders of a majority of the Registrable Securities registered
thereunder, keep such Registration Statement effective throughout the
Effectiveness Period. Notwithstanding the foregoing, the Company may suspend the
effectiveness of the Registration Statement by written notice to the Holders for
a period not to exceed an aggregate of 15 days in any 90-day period (each such
period, a "Suspension Period") if:
(x) the SEC issues a stop order suspending the effectiveness of the
Registration Statement or initiates proceedings with respect to the
Registration Statement, or the Company receives any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; or
(y) (i) an event occurs and is continuing as a result of which the
Registration Statement would, in the Company's reasonable judgment,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and
(z) (ii) the Company reasonably determines that the disclosure of
such event at such time would have a material adverse effect on the
business of the Company (and its subsidiaries, if any, taken as a
whole);
provided that in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which would impede the Company's ability to consummate such
transaction, the Company may extend a Suspension Period from 15 days to 30
days; provided, however, that Suspension Periods shall not exceed an
aggregate of 45 days in any 360-day period. If prior to or on the 15th or
30th day, as the case may be, of any Suspension Period, such suspension has
not been terminated, then, the Company shall, on the 20th or 35th day, as
the case may be, of any Suspension Period and each 30th day thereafter, pay
to each of the Purchasers their ratable portion (based on the percentage of
the Shares then owned by them) of additional Warrants to
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purchase an aggregate of 5% of the shares purchased hereunder of Common
Stock (subject to equitable adjustment to reflect any subdivision or
combination of the Company's Common Stock or the payment of dividends
payable in Common Stock or any other event in which such adjustment is
reasonably necessary to protect the rights of the purchasers) (the
"Suspension Warrants"), until either the Suspension Period is terminated or
there has occurred a Termination Event. Notwithstanding the foregoing, the
total number of Suspension Warrants paid to each Investor pursuant to this
Section 2.3(a) plus the number of Warrants purchased by such Investor at
Closing, shall in no event exceed the number of Shares of Common Stock
purchased by such Investor at Closing.
(b) Furnish to each Holder copies of the Registration Statement (excluding
exhibits thereto) and any prospectus forming a part thereof and any amendments
and supplements thereto (including all documents incorporated or deemed
incorporated by reference therein prior to the effectiveness of the Registration
Statement and including each preliminary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, which documents, other than
documents incorporated or deemed incorporated by reference, will be subject to
the reasonable review of the Holders for a period of not more than two (2)
business days; and the Company agrees to (i) incorporate in such documents any
comments from the Holders that reflect the correction of what any Holder
reasonably believes to be a material misstatement or omission of a material fact
with respect to such Holder or its plan of resale, and (ii) make reasonable
efforts to incorporate any other reasonable comments of any Holder in such
documents.
(c) Prepare and file with the SEC such amendments and supplements to such
Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement.
(d) Furnish to each Holder one conformed copy of the Registration Statement
and of each amendment and supplement thereto (in each case excluding exhibits)
and such number of copies of the prospectus forming a part of the Registration
Statement (including each preliminary prospectus) and any other prospectus filed
under Rule 424 under the Securities Act, and such other documents, including,
without limitation, documents incorporated or deemed to be incorporated by
reference prior to the effectiveness of such registration statement, as each of
the Holders from time to time may reasonably request;
(e) Use its reasonable best efforts (i) to register or qualify all
Registrable Securities covered by the Registration Statement under state
securities, or "blue sky," laws of such States of the United States of America
as the Holders of Registrable Securities covered by the Registration Statement
shall reasonably request, (ii) to keep such registration or qualification in
effect for so long as the Registration Statement
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remains in effect, and (iii) to take any other action which may be reasonably
necessary or advisable to enable the Holders to consummate the disposition in
such jurisdictions of the securities to be sold by the Holders, consistent with
the plan of distribution described in the prospectus included in the
Registration Statement, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in any
jurisdiction where it is not so qualified, or to subject itself to taxation in
any such jurisdiction, or to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act or applicable rules or regulations thereunder;
(f) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(g) Subject to Section 3.4 hereof, promptly notify each Holder of
Registrable Securities covered by the Registration Statement (i) upon discovery
that, or upon the happening of any event as a result of which, the prospectus
forming a part of the Registration Statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, (ii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of proceedings for that purpose, (iii)
of any request by the Commission for (A) amendments to the Registration
Statement or any document incorporated or deemed to be incorporated by reference
in the Registration Statement or (B) supplements to the prospectus forming a
part of the Registration Statement, or (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, and at the
request of any such Holder promptly prepare and file an amendment to the
Registration Statement or a supplement to the prospectus as the Company may deem
necessary so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and furnish to each Holder a reasonable number of copies of
such supplement to, or amendment of, such prospectus and, in the event of a stop
order, use its reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement, or the lifting of
any suspension of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction;
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(h) Furnish, at the request of a majority of the Holders participating in
the registration, on the date that such Registrable Securities are delivered to
the underwriters for sale, if such Registrable Securities are being sold through
underwriters, or, if such securities are not being sold through underwriters, on
the date that the Registration Statement with respect to such securities becomes
effective, an opinion, dated as of such date, of the counsel representing the
Company for the purposes of such registration, in form and substance as is
customarily given with respect to such registration and reasonably satisfactory
to a majority in interest of the Holders requesting registration, addressed to
the underwriters, if any, and to the Holders requesting registration of
Registrable Securities.
(i) To the extent practicable, promptly upon the filing of any document
that is to be incorporated by reference into the Registration Statement or
prospectus forming a part thereof subsequent to the effectiveness thereof, and
in any event no later than five (5) business days after such document is filed
with the Commission, provide copies of such document to the Holders, if
requested; and
(j) Use its best efforts to cause all Registrable Securities included in
the Registration Statement to be listed on the Nasdaq National Market or each
securities exchange on which securities of the same class are then listed, or,
if not then listed on any securities exchange, to be eligible for trading in any
over-the-counter market or trading system in which securities of the same class
are then traded.
2.4 Termination of Registration Rights. All registration rights granted
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under this Article 2 shall terminate and be of no further force and effect after
the Effectiveness Period or such shorter period ending when all Registrable
Securities covered by the registration (i) have been sold in the manner set
forth and as contemplated in the Registration Statement or (ii) may be sold
without limitation under Rule 144(k), other than as it relates to Section 2.7
herein.
2.5 Delay of Registration. No Holder shall have any right to obtain or seek
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an injunction restraining or otherwise delaying any such registration as the
result of any controversy that might arise with respect to the interpretation or
implementation of this Article 2.6.
2.6 Indemnification. If any Registrable Securities are included in a
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Registration Statement under Section 2.1:
(a) The Company will indemnify and hold harmless each Holder, the
partners, officers, trustees, members, partners and directors of each
Holder, and each person, if any, who controls such Holder within the
meaning of the Securities Act or the Exchange Act, and each underwriter for
any Holder, if any, and each person, if any, who controls any underwriter
within the meaning of the
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Securities Act or the Exchange Act (together, "Indemnified Person"),
against any losses, claims, damages, or liabilities, (including in
settlement of litigation) (or actions, investigations or proceedings in
respect thereof) (collectively, a "Claim") (joint or several) to which they
may become subject under the Securities Act, the Exchange Act, or other
federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon
any of the following statements, omissions, or violations (collectively a
"Company Violation") by the Company: (i) any untrue statement or alleged
untrue statement of a material fact contained in such Registration
Statement, including any preliminary prospectus or final prospectus
contained therein, or other document (including any related registration
statement, notification or the like) incident to the registration,
qualification or compliance, or any amendments or supplements thereto, (ii)
the omission or alleged omission to state therein a material fact required
to be stated therein in light of the circumstances in which they were made,
or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act, or any state
securities law, or any other law in connection with the offering covered by
such Registration Statement; and the Company will reimburse each
Indemnified Person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such Claim;
provided, however, that the indemnity agreement contained in this Section
2.6(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such
loss, claim, damage, liability, or action to the extent that it arises out
of or is based upon a Company Violation that occurs in reliance upon and in
conformity with written information furnished expressly for use in
connection with such registration by such Holder, partner, officer,
director, or controlling person of such Holder.
(b) Each selling Holder, if Registrable Securities held by it are
included in the securities as to which such Registration Statement is being
effected, will indemnify and hold harmless the Company, each of its
officers and directors, each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act, and each
underwriter, if any, and each person, if any, who controls any underwriter
within the meaning of the Securities Act or the Exchange Act, and any other
Holder selling securities under such Registration Statement or any of such
other Holder's partners, directors, or officers or any person who controls
such Holder, against any losses, claims, damages, or liabilities (joint or
several) to which the Company or any such director, officer, underwriter,
controlling person, or other such Holder, or partner,
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director, officer, or controlling person of such other Holder may
become subject under the Securities Act, the Exchange Act, or other
federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) arise out of or are based
upon any of the following statements, omissions or violations
(collectively, a "Holder Violation"): (i) any untrue statement or
alleged untrue statement of a material fact contained in such
Registration Statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto,
(ii) 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, or (iii) any violation or alleged violation by
the Holder of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act, or any state securities law in
connection with the offering covered by such Registration Statement,
in each case to the extent (and only to the extent) that such Holder
Violation occurs in reliance upon and in conformity with written
information furnished by such Holder and stated to be specifically for
use in connection with such registration; and each such Holder will
reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, underwriter, controlling
person, or other Holder, or partner, officer, director, or controlling
person of such other Holder in connection with investigating or
defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this
Section 2.6(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is
effected without the consent of the Holder, which consent shall not be
unreasonably withheld; provided, further, that in no event shall any
indemnity under this Section 2.6(b) exceed the proceeds from the
offering received by such Holder unless the Holder Violation is the
result of fraud on the part of such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under
this Section 2.6, deliver to the indemnifying party a written notice
of the commencement thereof, and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually satisfactory to
the parties; provided however, that counsel for the indemnified party
who shall conduct the defense of such action, shall be approved by the
indemnifying party, provided further, however, that an indemnified
party shall have the right to retain its own counsel, with the fees
and expenses to be paid by the indemnifying party, if representation
of such indemnified party by the counsel retained by the indemnifying
party would be inappropriate due to actual or potential differing
interests between such
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indemnified party and any other party represented by such counsel in
such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any
such action, if materially prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 2.6, but the omission so to
deliver written notice to the indemnifying party will not relieve it
of any liability that it may have to any indemnified party otherwise
than under this Section 2.6.
(d) If the indemnification provided for in this Section 2.6 is
held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any losses, claims, damages, or
liabilities referred to herein, the indemnifying party, in lieu of
indemnifying such indemnified party thereunder, shall to the extent
permitted by applicable law contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage, or
liability 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 Company Violation(s) or the
Holder Violation(s), as the case may be, that resulted in such loss,
claim, damage, or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by a court of law by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the 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.
(e) The obligations of the Company and Holders under this
Section 2.6 shall survive the termination or closing of any offering
in a Registration Statement, and otherwise.
ARTICLE 3
OTHER PROVISIONS
3.1 Investor Information. Whenever the Company is required to effect
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the registration of any Registrable Securities, each Investor shall, upon
request by the Company, provide all information reasonably requested by the
Company for use by the Company in the preparation of the Registration Statement
and any prospectus contained therein and compliance with the requirements of the
Securities Act with respect to such registration.
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3.2 Complete Agreement. This Agreement constitutes the entire
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agreement between the parties hereto with respect to the subject matter hereof.
3.3 Waiver, Discharge, Amendment, Etc. Any term of this Agreement may
---------------------------------
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular circumstance and either retroactively or
prospectively) only with the written consent of the Company, the Agent and
Purchasers holding two-thirds of the shares of Common Stock then held by the
Purchasers. The failure of any party hereto to enforce at any time any of the
provisions of this Agreement shall not, absent an express written waiver signed
by the party making such waiver specifying the provision being waived, be
construed to be a waiver of any such provision, nor in any way to affect the
validity of this Agreement or any part hereof or the right of the party
thereafter to enforce each and every such provision. No waiver of any breach of
this Agreement shall be held to be a waiver of any other or subsequent breach.
3.4 Notices. All notices or other communications to a party required
-------
or permitted hereunder shall be in writing and shall be delivered personally or
by telecopy (receipt confirmed) to such party (or, in the case of an entity, to
an executive officer of such party) or shall be sent by a reputable express
delivery service or by certified mail, postage prepaid with return receipt
requested, addressed as follows:
if to a Purchaser:
To the address set forth on Schedule 1 or such other address
as may be designated in writing hereafter, in the same
manner, by such Purchaser.
with copy to:
Xxxxxx X. Xxxxxx, Esq.
SAFECO Plaza
T-18
Xxxxxxx, XX 00000
Fax: (000) 000-0000
if to the Agent to:
Xxxxxxxx Xxxxxxxxxxx, Esq.
ThinkEquity Partners
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax: 000-000-0000
13
with copy to:
Xxxxxx X. Xxxxxxx, Esq.
Debevoise & Xxxxxxxx
000 xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
if to the Company to:
RMH Teleservices, Inc.
00 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Fax: 000-000-0000
with copy to:
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxx, Xx., Esq.
Fax: 000-000-0000
Any party may change the above-specified recipient and/or mailing address by
notice to all other parties given in the manner herein prescribed. All notices
shall be deemed given on the day when actually delivered as provided above (if
delivered personally or by telecopy) or on the day shown on the return receipt
(if delivered by mail or delivery service).
3.5 Assignment and Transfer. The rights to have the Company register
-----------------------
Registrable Securities pursuant to this Agreement shall be automatically
assignable by the Holders to any Person (a "Transferee") of all or any portion
of Registrable Securities if: (i) the Holder agrees in writing with the
Transferee to assign such rights, and a copy of such agreement is furnished to
the Company within a reasonable time after such assignment; (ii) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of (a) the name and address of such Transferee, and (b) the
securities with respect to which such registration rights are being transferred
or assigned; (iii) immediately following such transfer or assignment the further
disposition of such securities by the Transferee is restricted under the 1933
Act and applicable state securities laws; (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence the
Transferee agrees in
14
writing with the Company to be bound by all of the provisions contained herein;
and (v) such Transferee shall be an "accredited investor" as that term is
defined in Rule 501 of Regulation D promulgated under the 0000 Xxx.
3.6 Governing Law. This Agreement shall be governed by and
-------------
interpreted in accordance with the laws of the State of Minnesota, including all
matters of construction, validity, performance, and enforcement, without giving
effect to principles of conflict of laws.
3.7 Titles and Headings; Construction. The titles and headings to the
---------------------------------
Articles and Sections herein are inserted for the convenience of reference only
and are not intended to be a part of or to affect the meaning or interpretation
of this Agreement. This Agreement shall be construed without regard to any
presumption or other rule requiring construction hereof against the party
causing this Agreement to be drafted.
3.8 Benefit. Nothing in this Agreement, expressed or implied, is
-------
intended to confer on any person other than the parties hereto or their
respective successors or assigns, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement.
3.9 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed as original and all of which
together shall constitute one instrument, and may be delivered in person or by
facsimile transmission.
15
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed as of the date first written above.
RMH TELESERVICES, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X Xxxxxxx
Title: Chief Executive Officer
16
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
AGENT:
THINKEQUITY PARTNERS, LLC
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Partner
17
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
PURCHASER:
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Partner
Ardsley Advisory Partners
Ardsley Offshore Fund, LTD.
18
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
PURCHASER:
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Partner
Ardsley Advisory Partners
Ardsley Partners Fund I,L.P.
19
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
PURCHASER:
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Partner
Ardsley Advisory Partners
Ardsley Partners Fund II, L.P.
20
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
PURCHASER:
By: /s/ Xxxxxx X. Xxxx
----------------------------
Name: Xxxxxx X. Xxxx
Title: Partner
Ardsley Advisory Partners
Ardsley Institutional Fund, L.P.
21
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
PURCHASER:
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Partner
Ardsley Advisory Partners
Augusta Partners, L.P.
22
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
PURCHASER:
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
Constable Advisors, LLC
23
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
PURCHASER:
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
SAFECO Common Stock Trust
24
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
PURCHASER:
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Partner
Ardsley Advisory Partners
HH Managed Account I, LTD.
25
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
PURCHASER:
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Member
Potomac Capital Partners, LP
26
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
PURCHASER:
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
XX Xxxxxxx Pacific Master Fund
Unit Trust
Title: Portfolio Manager
27
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
AGENT:
THINKEQUITY PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
SAFECO Resource Series Trust
28
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
PURCHASER:
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
The Paisley Fund, L.P.
Title: Portfolio Manager
29
ACCEPTANCE
The undersigned hereby accepts the terms and conditions set forth in the
Registration Rights Agreement, dated September 28, 2001, among RMH Teleservices,
Inc., a Pennsylvania corporation (the "Company") and certain Purchasers listed
on Schedule 1 thereto. By execution of this Acceptance, the undersigned hereby
acknowledges the indemnification obligations contained in Section 2.6 of the
Registration Rights Agreement.
PURCHASER:
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Manager, Woodville LLC
30
SCHEDULE 1
Schedule of Purchasers
Purchaser Name Purchaser Address
------------------------------------- -----------------------------
Ardsley Offshore Fund Limited 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX
Ardsley Partners Fund I LP 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX
Ardsley Partners Fund II LP 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX
Ardsley Partners Institutional Fund LP 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX
Augusta Partners LP 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX
Constable Capital 0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX
Coralbasin & Co. 000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX
HH Managed Account I Limited 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX
Potomac Capital Partners, L.P. 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX
XX Xxxxxxx Pacific Master Fund Unit Trust 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX
Coralrock & Co. 000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX
The Paisley Fund, L.P. 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX
Woodville LLC 00 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX
31
