EXHIBIT 1(c)
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
DATED AS OF SEPTEMBER 30, 2004
AMONG
VENTURI PARTNERS, INC.
AND
THE PARTIES NAMED HEREIN
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TABLE OF CONTENTS
PAGE
Section 1. Definitions................................................. 1
Section 2. Demand Registrations........................................ 4
Section 3. Piggyback Registrations..................................... 6
Section 4. Shelf Registration.......................................... 7
Section 5. Obligations of the Company.................................. 7
Section 6. Registration Expenses....................................... 12
Section 7. Indemnification............................................. 12
Section 8. Rules 144 and 144A.......................................... 15
Section 9. Underwritten Registrations.................................. 15
Section 10. Covenants of Holders........................................ 16
Section 11. Miscellaneous............................................... 16
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the "Agreement")
is made and entered into as of September 30, 2004, by and among Venturi
Partners, Inc., a Delaware corporation (the "Company"), and the parties
identified as "Investors" on the signature pages hereto (each an "Investor" and
together the "Investors").
PRELIMINARY STATEMENTS
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A. The Company entered into a Registration Rights Agreement dated as of
April 14, 2003 (the "Registration Rights Agreement") with several investors
pursuant to which the Company agreed to provide the Investors with certain
registration rights set forth therein.
B. The Company, Venturi Technology Partners, LLC, VTP, Inc., COMSYS
Information Technology Services, Inc., COMSYS Holding, Inc. ("Holding") and
certain stockholders of Holding (the "Holding Stockholders") entered into an
Agreement and Plan of Merger dated July 19, 2004 (the "Merger Agreement"),
pursuant to which, upon the terms and subject to the conditions thereof, VTP,
Inc. will be merged with and into Holding and Holding will be the surviving
entity (the "Merger").
C. As a condition to the consummation of the transactions contemplated
by the Merger Agreement, the Company is entering into a Registration Rights
Agreement with the Holding Stockholders to provide the Holding Stockholders with
certain registration rights (the "Holding Stockholders Registration Rights
Agreement").
D. Section 11(c) of the Registration Rights Agreement provides that the
provisions of the Registration Rights Agreement may be amended, modified,
supplemented or waived upon the prior written consent of the Company and the
Holders of a majority of the outstanding Registrable Securities.
E. In connection with the foregoing, the Company and the Investors desire
to amend and restate the Registration Rights Agreement in its entirety as set
forth herein.
Now, therefore, for good, valuable and binding consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound hereby, now agree as follows:
STATEMENT OF AGREEMENT
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Section 1. Definitions.
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As used in this Agreement, the following terms shall have the meanings set
forth below:
"Charter" means the Amended and Restated Certificate of Incorporation of
the Company, as amended from time to time.
"Commission" means the United States Securities and Exchange Commission or
any other United States federal agency at the time administering the Securities
Act.
"Common Stock" means the Company's common stock, par value $0.01 per share,
or any other shares of capital stock or other securities of the Company into
which such shares of Common Stock shall be reclassified or changed, including,
by reason of a merger, consolidation, reorganization or recapitalization. If the
Common Stock has been so reclassified or changed, or if the Company pays a
dividend or makes a distribution on the Common Stock in shares of capital stock,
or subdivides (or combines) its outstanding shares of Common Stock into a
greater (or smaller) number of shares of Common Stock, a share of Common Stock
shall be deemed to be such number of shares of stock and amount of other
securities to which a holder of a share of Common Stock outstanding immediately
prior to such change, reclassification, exchange, dividend, distribution,
subdivision or combination would be entitled.
"Credit Restructure Agreement" means the Credit Restructure Agreement dated
April 11, 2003, among the Company and certain Investors pursuant to which the
Company issued to such Investors Warrants to purchase Common Stock.
"Delay Period" has the meaning set forth in Section 5(a) of this Agreement.
"Demand Notice" has the meaning set forth in Section 2(a) of this
Agreement.
"Demand Registration" has the meaning set forth in Section 2(a) of this
Agreement.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder.
"Holder" means a person who owns Registrable Securities and is either (i)
an Investor or a Permitted Transferee of an Investor that has agreed to be bound
by the terms of this Agreement as if such Person were an Investor, (ii) upon the
death of any Holder, the executor of the estate of such Holder or such Holder's
heirs, devisees, legatees or assigns or (iii) upon the disability of any Holder,
any guardian or conservator of such Holder.
"Interruption Period" has the meaning set forth in the last paragraph in
Section 5(c).
"Losses" has the meaning set forth in Section 7(a) of this Agreement.
"Misstatement/Omission" has the meaning set forth in Section 7(a) of this
Agreement.
"Permitted Transferee" means any Person to whom the rights under this
Agreement have been assigned in accordance with the provisions of Section 11(d)
hereof.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
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"Piggyback Registration" has the meaning set forth in Section 3(a) of this
Agreement.
"Prospectus" means the prospectus included in any Registration Statement,
as amended or supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Securities covered by
such Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
"Registrable Securities" means (i) the shares of Common Stock issued to the
Investors pursuant to the Restructuring Agreement, (ii) any shares of Common
Stock issued or issuable upon the conversion of the Series B Preferred Stock and
(iii) any shares of Common Stock issued or issuable upon the exercise of any of
the Warrants. If as a result of any reclassification, stock dividends or stock
splits or in connection with a combination of shares, recapitalization, merger,
consolidation, or other reorganization or other transaction or event, any
capital stock, evidence of indebtedness, warrants, options, rights or other
securities (collectively "Other Securities") are issued or transferred to a
Holder in respect of Registrable Securities held by the Holder, references
herein to Registrable Securities shall be deemed to include such Other
Securities. As to any particular Registrable Securities, such securities will
cease to be Registrable Securities when (i) they have been distributed to the
public pursuant to an offering registered under the Securities Act, (ii) they
have been distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, or (iii) they have been sold to any Person
to whom the rights under this Agreement are not assigned in accordance with this
Agreement.
"Registration Statement" means any registration statement under the
Securities Act of the Company that covers any of the Registrable Securities,
including the related Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits, and all materials incorporated by reference or deemed
to be incorporated by reference in such registration statement or Prospectus.
"Required Holders" means Holders of at least a majority of the aggregate
amount of all Registrable Securities outstanding.
"Restructuring Agreement" means the Restructuring Agreement dated March 14,
2003, among the Company and certain Investors, and a Participation Agreement,
dated March 14, 2003, between the Company and an Investor, pursuant to which the
Company issued shares of its Common Stock and preferred stock convertible into
Common Stock to certain of the Investors.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Shelf Registration" has the meaning set forth in Section 4(a) of this
Agreement.
"Warrants" means the common stock purchase warrants issued by the Company
pursuant to the Credit Restructure Agreement.
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Section 2. Demand Registrations.
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(a) Right to Demand. Upon the terms and subject to the conditions
of this Agreement, the Required Holders shall have the right, by written notice
(the "Demand Notice") given to the Company, to request the Company to register
under and in accordance with the provisions of the Securities Act all or part of
the Registrable Securities designated by such Holders (a "Demand Registration").
Upon receipt of any such Demand Notice, the Company will promptly notify all
other Holders of the receipt of such Demand Notice and allow them the
opportunity to include Registrable Securities in the proposed registration by
giving notice to the Company within five days after the Holder receives such
notice; provided, that Holders joining in a proposed registration pursuant to
this sentence shall not be deemed to have exercised a Demand Registration for
purposes of Section 2(b) hereof and such Holders shall be included in such
registration on the basis set forth in Section 2(h) hereof. Notwithstanding
anything herein to the contrary, the Company shall not be required to honor a
request for a Demand Registration if the Company has not received Demand Notices
from the Required Holders. The Company shall not be required to register any
Registrable Securities under this Section 2 unless the anticipated aggregate
offering price to the public for any such offering of the Registrable Securities
included in such Demand Notice is expected to be at least $5 million.
(b) Number of Demand Registrations. The Required Holders shall be
entitled to have two Demand Registrations effected. A Demand Registration shall
not be deemed to be effected and shall not count as a Demand Registration of any
Person (i) if a Registration Statement with respect thereto shall not have
become effective under the Securities Act and remained effective for at least
180 days (excluding any Interruption Period) or until the completion of the
distribution of the Registrable Securities thereunder, whichever is earlier
(including, without limitation, because of withdrawal of such Registration
Statement by the Holders pursuant to Section 2(f) hereunder), (ii) if, after it
has become effective, such registration is interfered with for any reason by any
stop order, injunction or other order or requirement of the Commission or any
governmental authority, or as a result of the initiation of any proceeding for
such stop order by the Commission through no fault of the Holders and the result
of such interference is to prevent the Holders from disposing of such
Registrable Securities proposed to be sold in accordance with the intended
methods of disposition, (iii) the Company exercises its rights with respect to a
Delay Period under Section 5(a) and the result is a delay in the proposed
distribution of any Registrable Securities and the Holders determine not to sell
such Registrable Securities pursuant to such registration as a result of such
delay, or (iv) if the conditions to closing specified in the purchase agreement
or underwriting agreement entered into in connection with any underwritten
offering shall not be satisfied or waived with the consent of the Required
Holders, other than as a result of any breach by the Holders or any underwriter
of its obligations thereunder or hereunder.
(c) Registration Statement. Subject to paragraph (a) above, as
soon as practicable, but in any event within 45 days of the date on which the
Company first receives one or more Demand Notices from the Required Holders
pursuant to Section 2(a) hereof, the Company shall file with the Commission a
Registration Statement on the appropriate form for the registration and sale of
the total number of Registrable Securities specified in such Demand Notice,
together with the number of Registrable Securities requested to be included in
the Demand Registration by other Holders, in accordance with the intended method
or methods of distribution specified by the Holders in such Demand Notice. The
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Company shall use its reasonable best efforts to cause such Registration
Statement to be declared effective by the Commission as soon as reasonably
practicable. Notwithstanding the foregoing, the Company shall not be obligated
to file a Registration Statement pursuant to this Section 2(c) if the offering
requested to be registered is a delayed or continuous offering under Rule 415
under the Securities Act and such offering is available for the Holders, in
which case the registration shall be made by the Company pursuant to Section 4
hereof.
(d) Amendments; Supplements. Subject to Section 5(a), upon the
occurrence of any event that would cause the Registration Statement (A) to
contain a material misstatement or omission or (B) to be not effective and
usable for resale of Registrable Securities during the period that such
Registration Statement is required to be effective and usable, the Company shall
file an amendment to the Registration Statement as soon as reasonably
practicable, in the case of clause (A), correcting any such misstatement or
omission and, in the case of either clause (A) or (B), use its reasonable best
efforts to cause such amendment to be declared effective and such Registration
Statement to become usable as soon as reasonably practicable thereafter.
(e) Effectiveness. The Company agrees to use its reasonable best
efforts to keep any Registration Statement filed pursuant to this Section 2
continuously effective and usable for the sale of Registrable Securities until
the earlier of (i) 180 days from the date on which the Commission declares such
Registration Statement effective (excluding any Interruption Period), or (ii)
the date on which all the Registrable Securities covered by such Registration
Statement have been sold pursuant to such Registration Statement.
(f) Holders Withdrawal. Holders of a majority in number of the
Registrable Securities to be included in a Demand Registration pursuant to this
Section 2 may, at any time prior to the effective date of the Registration
Statement in respect thereof, revoke such request by providing a written notice
to the Company to such effect.
(g) Preemption of Demand Registration. Notwithstanding anything to
the contrary contained herein, after receiving a written request for a Demand
Registration, the Company may elect to effect an underwritten primary
registration in lieu of the Demand Registration if the Company's Board of
Directors believes that such primary registration would be in the best interests
of the Company. If the Company so elects to effect a primary registration, the
Company shall give prompt written notice (which shall be given not later than 20
days after the date of the Demand Notice) to all holders of the Registrable
Securities of its intention to effect such a registration and shall afford the
holders of the Registrable Securities the rights contained in Section 3 with
respect to Piggyback Registrations. In the event that the Company so elects to
effect a primary registration after receiving a request for a Demand
Registration, the Company shall use its reasonable best efforts to have the
Registration Statement declared effective by the Commission as soon as
reasonably practicable. In addition, the request for a Demand Registration shall
be deemed to have been withdrawn and such primary registration shall not be
deemed to be a Demand Registration.
(h) Priority on Demand Registrations. If a Demand Registration is
an underwritten offering and includes securities for sale by the Company, and
the managing underwriter (such underwriter to be chosen by the Holders of a
majority of the Registrable Securities included in such registration, subject to
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the Company's reasonable approval) advises the Company, in writing, that, in its
good faith judgment, the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
materially and adversely affecting the marketability of the offering, then the
Company will include in any such registration the maximum number of shares which
the managing underwriter advises the Company can be sold in such offering
allocated as follows: (i) first, the Registrable Securities requested to be
included in such registration by the initiating Holders and securities of other
Holders of Registrable Securities and other holders of registration rights under
the Holding Stockholder Registration Rights Agreement, with such securities to
be included on a pro rata basis (or in such other proportion mutually agreed
among such holders) based on the amount of securities requested to be included
therein and (ii) second, to the extent that any other securities may be included
without exceeding the limitations recommended by the underwriter as aforesaid,
the securities that the Company proposes to sell. If the initiating Holders are
not allowed to register all of the Registrable Securities requested to be
included by such Holders because of allocations required by this section, such
initiating Holders shall not be deemed to have exercised a Demand Registration
for purposes of Section 2(b).
Section 3. Piggyback Registrations.
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(a) Right to Piggyback Registrations. Whenever the Company or
another party having registration rights proposes that the Company register any
of the Company's equity securities under the Securities Act (other than a
registration on Form S-4 relating solely to a transaction described in Rule 145
of the Securities Act or a registration on Form S-8 or any successor forms
thereto), whether or not for sale for the Company's own account, the Company
will give prompt written notice of such proposed filing to all Holders at least
30 days before the anticipated filing date. Such notice shall offer such Holders
the opportunity to register such amount of Registrable Securities as they shall
request (a "Piggyback Registration"). Subject to Section 3(b) hereof, the
Company shall include in each such Piggyback Registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 20 days after such notice has been given by the Holders
to the Company. If the Registration Statement relating to the Piggyback
Registration is to cover an underwritten offering, such Registrable Securities
shall be included in the underwriting on the same terms and conditions as the
securities otherwise being sold through the underwriters. Each Holder shall be
permitted to withdraw all or part of the Registrable Securities from a Piggyback
Registration at any time prior to the effective time of such Piggyback
Registration.
(b) Priority on Piggyback Registrations. If a Piggyback
Registration is an underwritten offering, by or through one or more underwriters
of recognized standing and the managing underwriters advise the party or parties
initiating such offering in writing (a copy of which writing shall be provided
to the Holders) that in their good faith judgment the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering without materially and adversely affecting the
marketability of the offering, then any such registration shall include the
maximum number of shares which such managing underwriters advise can be sold in
such offering allocated as follows: (i) first, the securities the party or
parties initiating such offering propose to sell, and (ii) second, to the extent
that any other securities may be included without exceeding the limitations
recommended by the underwriters as aforesaid, (x) if the Company has initiated
such offering, the Registrable Securities to be included in such registration by
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the Holders and securities of other holders of registration rights under the
Holding Stockholders Registration Rights Agreement, with such additional
securities to be included on a pro rata basis (or in such other proportion
mutually agreed among the Holders and such other holders), based on the amount
of Registrable Securities and other securities requested to be included therein,
and (y) if a party other than the Company initiated such offering (subject to
Section 3(b)(i) above), securities proposed to be sold by the Company, the
Registrable Securities to be included in such registration by the Holders and
securities of other holders of registration rights under the Holding
Stockholders Registration Rights Agreement, with such additional securities to
be included on a pro rata basis (or in such other proportion mutually agreed
among the Company, the Holders and such other holders), based on the amount of
Registrable Securities and other securities requested to be included therein.
Section 4. Shelf Registration.
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(a) Right to Shelf Registration. The Company shall use its
commercially reasonable efforts to (i) file with the Commission as promptly as
practicable following the date of this Agreement (but in no event later than 60
days after such date) a registration ("Shelf Registration") for delayed or
continuous offerings of Registrable Securities in market transactions on any
appropriate form pursuant to Rule 415 under the Securities Act (or similar rule
that may be adopted by the Commission), which form shall be available for the
sale of all of the Registrable Securities outstanding on the effective date of
the Shelf Registration in accordance with the intended methods of distribution
thereof and (ii) cause the Shelf Registration to be declared effective by the
Commission as soon thereafter as practicable. The Company agrees to use its
commercially reasonable efforts to keep such Shelf Registration continuously
effective and usable for resale of Registrable Securities until the second
anniversary of the date of this Agreement or such shorter period which will
terminate at such time as the Holders have sold all the Registrable Securities
covered by such Registration Statement. At any time thereafter, any Holder or
Holders holding in the aggregate at least 5% of the outstanding shares of Common
Stock may request that the Company file and cause to be declared effective a
Shelf Registration.
(b) Number of Shelf Registrations. The Holders shall be entitled
to an unlimited number of Shelf Registrations and no Shelf Registration shall be
counted as a Demand Registration for purposes of Section 2(a) hereof.
(c) Agreement regarding Shelf Registration. Each Holder hereby
waives any claim it may have had against the Company for not filing a Shelf
Registration for the Registrable Securities prior to the time specified in
Section 4(a) above.
Section 5. Obligations of the Company.
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(a) Delay Period. Notwithstanding the foregoing, the Company shall
have the right to delay the filing of any Registration Statement otherwise
required to be prepared and filed by the Company pursuant to Sections 2, 3 or 4,
or to suspend the use of any Registration Statement, for a period not in excess
of 60 consecutive calendar days (a "Delay Period") if (i) the Board of Directors
of the Company determines that filing or maintaining the effectiveness of such
Registration Statement would have a material adverse effect on the Company or
the holders of its capital stock in relation to any material acquisition or
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disposition, financing or other corporate transaction and the Board of Directors
of the Company has determined in good faith that disclosure thereof would not be
in the best interests of the Company and its holders of capital stock at the
time or (ii) the Board of Directors of the Company has determined in good faith
that the filing of a Registration Statement or maintaining the effectiveness of
a current Registration Statement would require disclosure of material
information that the Company has a valid business purpose for retaining as
confidential at such time. The Company shall be entitled to exercise a Delay
Period more than one time in any calendar year so long as such exercise does not
prevent the Holders from being entitled to at least 240 days of effective
registration rights per calendar year and that no Delay Period may commence if
it is less than 30 days from the end of the previous Delay Period.
Notwithstanding the foregoing, the number of days of effective registration
rights that the Holders shall be entitled to for calendar year 2004 will be pro
rated based on the number of days remaining in 2004 after the date of this
Agreement.
(b) Shelf Registrations After Other Registrations. Other than the
initial Shelf Registration discussed in Section 4(a) above, the Company shall
not be obligated to effect any Shelf Registration within 120 days after the
effective date of a previous Registration Statement filed by the Company (except
for registrations on Form S-4 or Form S-8, or other forms prescribed under the
Securities Act for the same purpose or for an exchange offer).
(c) Registration Procedures. Whenever the Company is required to
register Registrable Securities pursuant to Sections 2, 3 or 4 hereof, the
Company will use its reasonable best efforts to effect the registration to
permit the sale of such Registrable Securities in accordance with the intended
method or methods of disposition thereof, and pursuant thereto the Company will
as expeditiously as possible:
(1) prepare and file with the Commission a Registration
Statement with respect to such Registrable Securities as prescribed by Sections
2, 3 or 4 on a form available for the sale of the Registrable Securities by the
holders thereof in accordance with the intended method or methods of
distribution thereof and use reasonable best efforts to cause each such
Registration Statement to become and remain effective within the time periods
and otherwise as provided herein;
(2) prepare and file with the Commission such amendments,
(including post-effective amendments) to the Registration Statement and such
supplements to the Prospectus as may be necessary to keep such Registration
Statement effective 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;
(3) furnish to each selling Holder of Registrable
Securities covered by a Registration Statement and to each underwriter, if any,
such number of copies of such Registration Statement, each amendment and
post-effective amendment thereto, the Prospectus included in such Registration
Statement (including each preliminary prospectus and any supplement to such
Prospectus and any other prospectus filed under Rule 424 of the Securities Act),
in each case including all exhibits, and such other documents as such Holder may
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reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Holder or to be disposed of by such underwriter (the
Company hereby consenting to the use in accordance with all applicable law of
each such Registration Statement (or amendment or post-effective amendment
thereto) and each such Prospectus (or preliminary prospectus or supplement
thereto) by each such Holder and the underwriters, if any, in connection with
the offering and sale of the Registrable Securities covered by such Registration
Statement or Prospectus);
(4) use its reasonable best efforts to register or qualify
and, if applicable, to cooperate with the selling Holders, the underwriters, if
any, and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of, the
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions as any selling Holder or managing underwriters (if any)
shall reasonably request, to keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
securities covered by the applicable Registration Statement; 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
paragraph or (ii) consent to general service of process or taxation in any such
jurisdiction where it is not so subject;
(5) cause all such Registrable Securities to be listed or
quoted (as the case may be) on each national securities exchange or other
securities market on which securities of the same class as the Registrable
Securities are then listed or quoted;
(6) provide a transfer agent and registrar for all such
Registrable Securities and a CUSIP number for all such Registrable Securities
not later than the effective date of such Registration Statement;
(7) comply with all applicable rules and regulations of
the Commission, and make available to its security holders an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (or in each case within
such extended period of time as may be permitted by the Commission for filing
the applicable report with the Commission) (i) commencing at the end of any
fiscal quarter in which Registrable Securities are sold to underwriters in an
underwritten offering or (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement;
(8) use reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or suspending
the qualification (or exemption from qualification) of any of the Registrable
Securities included therein for sale in any jurisdiction, and, in the event of
the issuance of any stop order suspending the effectiveness of a Registration
Statement, or of any order suspending the qualification of any Registrable
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 at the earliest possible moment;
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(9) obtain "cold comfort" letters and updates thereof
(which letters and updates (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the Holders) from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, if any, and each selling
Holder of Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings and such other matters as the
underwriters, if any, or the Holders of a majority of the Registrable Securities
being included in the registration may reasonably request;
(10) obtain opinions of independent counsel to the Company
and updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any, and the
Holders of a majority of the Registrable Securities being included in the
registration), addressed to each selling Holder and each of the underwriters, if
any, covering the matters customarily covered in opinions of issuer's counsel
requested in underwritten offerings, such as the effectiveness of the
Registration Statement and such other matters as may be requested by such
counsel and underwriters, if any;
(11) promptly notify the selling Holders and the managing
underwriters, if any, and confirm such notice in writing, when a Prospectus or
any supplement or post-effective amendment to such Prospectus has been filed,
and, with respect to a Registration Statement or any post-effective amendment
thereto, when the same has become effective, of any request by the Commission or
any other federal or state governmental authority for amendments or supplements
to a Registration Statement or related Prospectus or for additional information,
of the issuance by the Commission of any stop order suspending the effectiveness
of a Registration Statement or of any order preventing or suspending the use of
any Prospectus or the initiation of any proceedings by any Person for that
purpose, of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Securities for offer or sale
under the securities or blue sky laws of any jurisdiction, or the contemplation,
initiation or threatening, of any proceeding for such purpose, and of the
happening of any event or the existence of any facts that make any statement
made in such Registration Statement or Prospectus untrue in any material respect
or that require the making of any changes in such Registration Statement or
Prospectus so that it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made (in the case of any Prospectus), not misleading (which notice shall be
accompanied by an instruction to the selling Holders and the managing
underwriters, if any, to suspend the use of the Prospectus until the requisite
changes have been made);
(12) if requested by the managing underwriters, if any, or
a Holder of Registrable Securities being sold, promptly incorporate in a
prospectus, supplement or post-effective amendment such information as the
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managing underwriters, if any, and the Holders of a majority of the Registrable
Securities being sold reasonably request to be included therein relating to the
sale of the Registrable Securities, including, without limitation, information
with respect to the number of shares of Registrable Securities being sold to
underwriters, the purchase price being paid therefor by such underwriters and
with respect to any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering, and make all required filings of such
prospectus, supplement or post-effective amendment promptly following
notification of the matters to be incorporated in such supplement or
post-effective amendment;
(13) if requested, furnish to each selling Holder of
Registrable Securities and the managing underwriter, without charge, at least
one signed copy of the Registration Statement;
(14) as promptly as practicable upon the occurrence of any
event contemplated by Section 5(c)(11) above, prepare a supplement or
post-effective amendment to the Registration Statement or the Prospectus, or any
document incorporated therein by reference, or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable Securities
being sold hereunder, the Prospectus will not contain an untrue statement of a
material fact or an omission to state a material fact required to be stated in a
Registration Statement or Prospectus or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and
(15) if such offering is an underwritten offering, enter
into such agreements (including an underwriting agreement in form, scope and
substance as is customary in underwritten offerings) and take all such other
appropriate and reasonable actions requested by the Holders owning a majority of
the Registrable Securities being sold in connection therewith or by the managing
underwriters (including cooperating in reasonable marketing efforts, including
in connection with any Demand Registration, participation by senior executives
of the Company in any "roadshow" or similar meeting with potential investors) in
order to expedite or facilitate the disposition of such Registrable Securities,
and in such connection, provide indemnification provisions and procedures
substantially to the effect set forth in Section 7 hereof with respect to all
parties to be indemnified pursuant to said Section. The above shall be done at
each closing under such underwriting or similar agreement, or as and to the
extent required thereunder.
Each Holder agrees by acquisition of such Registrable Securities that, upon
receipt of written notice from the Company of the happening of any event of the
kind described in Section 5(c)(11), such Holder will forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Registration Statement contemplated by Section 5(c)(14), or until it is
advised in writing by the Company that the use of the applicable Prospectus may
be resumed, and has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
prospectus (such period during which disposition is discontinued being an
"Interruption Period"), and, if so directed by the Company, such Holder will
deliver to the Company all copies of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice.
11
Section 6. Registration Expenses.
---------------------
(a) Expenses Payable by the Company. The Company shall bear all
expenses incurred with respect to the registration or attempted registration of
the Registrable Securities pursuant to Sections 2, 3 and 4 of this Agreement as
provided herein. Such expenses shall include, without limitation, (i) all
registration, qualification and filing fees (including, without limitation, (A)
fees with respect to compliance with the Commission, (B) fees with respect to
filings required to be made with the national securities exchange or national
market system on which the Common Stock is then traded or quoted and (C) fees
and expenses of compliance with state securities or blue sky laws (including,
without limitation, fees and disbursements of counsel for the Company or the
underwriters, or both, in connection with blue sky qualifications of Registrable
Securities)), (ii) messenger and delivery expenses, word processing, duplicating
and printing expenses (including without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company, printing preliminary prospectuses, prospectuses,
prospectus supplements, including those delivered to or for the account of the
Holders and provided in this Agreement, and blue sky memoranda), (iii) fees and
disbursements of counsel for the Company, (iv) fees and disbursements of all
independent certificated public accountants for the Company (including, without
limitation, the expense of any "comfort letters" required by or incident to such
performance), (v) all out-of-pocket expenses of the Company (including without
limitation, expenses incurred by the Company, its officers, directors, and
employees performing legal or accounting duties or preparing or participating in
"roadshow" presentations or of any public relations, investor relations or other
consultants or advisors retained by the Company in connection with any roadshow,
including travel and lodging expenses of such roadshows), (vi) fees and expenses
incurred in connection with the quotation or listing of shares of Common Stock
on any national securities exchange or other securities market, and (vii)
reasonable fees and expenses of one firm of counsel for all selling Holders
(which shall be chosen by the Holders of a majority of Registrable Securities to
be included in such offering).
(b) Expenses Payable by the Holders. Each Holder shall pay all
underwriting discounts and commissions or placement fees of underwriters or
broker's commissions incurred in connection with the sale or other disposition
of Registrable Securities for or on behalf of such Holder's account.
Section 7. Indemnification.
---------------
(a) Indemnification by the Company. The Company agrees to
indemnify, to the fullest extent permitted by law, each Holder, each affiliate
of a Holder and each director, officer, employee, manager, stockholder, partner,
member, counsel, agent or representative of such Holder and its affiliates and
each Person who controls any such Person (within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act) (collectively,
"Holder Indemnified Parties") against, and hold it and them harmless from, all
losses, claims, damages, liabilities, actions, proceedings, costs (including,
without limitation, costs of preparation and attorneys' fees and disbursements)
and expenses, including expenses of investigation and amounts paid in settlement
(collectively, "Losses") arising out of, caused by or based upon any untrue or
alleged untrue statement of material fact contained in any Registration
Statement, or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading (a
12
"Misstatement/Omission"), or 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, except that the Company shall not be liable insofar as
such Misstatement/Omission or violation is made in reliance upon and in
conformity with information furnished in writing to the Company by such Holder
expressly for use therein; provided, further, that the Company shall not be
liable for a Holder's failure to deliver or cause to be delivered (to the extent
such delivery is required under the Securities Act) the Prospectus contained in
the Registration Statement, furnished to it by the Company on a timely basis at
or prior to the time such action is required by the Securities Act to the person
claiming a Misstatement/Omission if such Misstatement/Omission was corrected in
such Prospectus. In connection with an underwritten offering, the Company will
indemnify such underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such underwriters (within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders. This indemnity shall be in addition to any other
indemnification arrangements to which the Company may otherwise be party.
Notwithstanding the foregoing, the indemnity contained in this section shall not
apply to amounts paid in settlement of any such Losses if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld).
(b) Indemnification by the Holders. In connection with any
Registration Statement in which a Holder is participating, each such Holder
agrees to indemnify, to the fullest extent permitted by law, the Company and
each director and officer of the Company and each Person who controls the
Company (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) against, and hold it harmless from, any Losses
arising out of or based upon (i) any Misstatement/Omission contained in the
Registration Statement, if and to the extent that such Misstatement/Omission was
made in reliance upon and in conformity with information furnished in writing by
such Holder for use therein, or (ii) the failure by such Holder to deliver or
cause to be delivered (to the extent such delivery is required under the
Securities Act) the Prospectus contained in the Registration Statement,
furnished to it by the Company on a timely basis at or prior to the time such
action is required by the Securities Act to the person claiming a
Misstatement/Omission if such Misstatement/Omission was corrected in such
Prospectus. Notwithstanding the foregoing, the obligation to indemnify will be
individual (several and not joint) to each Holder and will be limited to the net
amount of proceeds (net of payment of all expenses) received by such Holder from
the sale of Registrable Securities pursuant to such Registration Statement
giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any action,
claim or proceeding shall be brought against any Person entitled to
indemnification hereunder, such indemnified party shall promptly notify each
indemnifying party in writing, and such indemnifying party shall assume the
defense thereof, including the employment of one counsel reasonably satisfactory
to such indemnified party and payment of all fees and expenses incurred in
connection with the defense thereof. The failure to so notify such indemnifying
party shall relieve such indemnifying party of its indemnification obligations
to such indemnified party to the extent that such failure to notify materially
prejudiced such indemnifying party but not from any liability that it or they
may have to the indemnified party for contribution or otherwise. Each
13
indemnified party shall have the right to employ separate counsel in such
action, claim or proceeding and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of each indemnified party
unless: (i) such indemnifying party has agreed to pay such expenses; (ii) such
indemnifying party has failed promptly to assume the defense and employ counsel
reasonably satisfactory to such indemnified party; or (iii) the named parties to
any such action, claim or proceeding (including any impleaded parties) include
both such indemnified party and such indemnifying party or an affiliate or
controlling person of such indemnifying party, and such indemnified party shall
have been advised in writing by counsel that either (x) there may be one or more
legal defenses available to it which are different from or in addition to those
available to such indemnifying party or such affiliate or controlling person or
(y) a conflict of interest may exist if such counsel represents such indemnified
party and such indemnifying party or its affiliate or controlling person;
provided, however, that such indemnifying party shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be responsible hereunder for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel), which counsel shall be designated by such indemnified party or, in the
event that such indemnified party is a Holder Indemnified Party, by the Holders
of a majority of the Registrable Securities included in the subject Registration
Statement.
No indemnifying party shall be liable for any settlement effected without
its written consent (which consent may not be unreasonably delayed or withheld).
Each indemnifying party agrees that it will not, without the indemnified party's
prior written consent, consent to entry of any judgment or settle or compromise
any pending or threatened claim, action or proceeding in respect of which
indemnification or contribution may be sought hereunder unless the foregoing
contains an unconditional release, in form and substance reasonably satisfactory
to the indemnified parties, of the indemnified parties from all liability and
obligation arising therefrom. The indemnifying party's liability to any such
indemnified party hereunder shall not be extinguished solely because any other
indemnified party is not entitled to indemnity hereunder.
(d) Survival. The indemnification provided for under this
Agreement will (i) remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party, (ii) survive the
transfer of securities and (iii) survive the termination of this Agreement.
(e) Right to Contribution. If the indemnification provided for in
this Section 7 is unavailable to, or insufficient to hold harmless, an
indemnified party under Section 7(a) or Section 7(b) above in respect of any
Losses referred to in such Sections, then each applicable indemnifying party
shall have an obligation to contribute to the amount paid or payable by such
indemnified party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of the Company, on the one hand, and
of the Holder, on the other, in connection with the Misstatement/Omission or
violation which resulted in such Losses, taking into account any other relevant
equitable considerations. The amount paid or payable by a party as a result of
the Losses referred to above shall be deemed to include, subject to the
limitations set forth in Section 8(c) above, any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation, lawsuit
or legal or administrative action or proceeding.
14
The relative fault of the Company, on the one hand, and of the Holder, on
the other, shall be determined by reference to, among other things, whether the
relevant Misstatement/Omission or violation relates to information supplied by
the Company or by the Holder and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such Misstatement/Omission
or violation.
The Company and each Holder agree that it would not be just and equitable
if contribution pursuant to this Section 7(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 7(e), a Holder shall not be required to contribute any amount in
excess of the amount by which (i) the amount (net of payment of all expenses) at
which the securities that were sold by such Holder and distributed to the public
were offered to the public exceeds (ii) the amount of any damages which such
Holder has otherwise been required to pay by reason of such
Misstatement/Omission or violation.
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.
Section 8. Rules 144 and 144A.
------------------
The Company shall timely file the reports required to be filed by it under
the Securities Act and the Exchange Act (including but not limited to the
reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c) of Rule 144 adopted by the Commission under the Securities Act)
and the rules and regulations adopted by the Commission thereunder (or, if the
Company is not required to file such reports, it will; upon the request of any
holder of Registrable Securities, make publicly available other information) and
will take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the Commission.
Section 9. 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 and (ii) completes and
executes all questionnaires, powers of attorney, customary indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements; provided, that, no Holder included in any
underwritten registration shall be required to make any representations or
warranties to the Company or the underwriters other than representations and
warranties regarding such Holder and such Holder's intended method of
distribution.
(b) If any of the Registrable Securities covered by any
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
15
the offering will be selected by, and the underwriting arrangements with respect
thereto will be approved by, the Company; provided, however, that such
investment bankers and managers and underwriting arrangements must be reasonably
satisfactory to the Holders of the majority of Registrable Securities to be
included in such offering.
Section 10. Covenants of Holders.
--------------------
Each of the Holders hereby agrees (a) to cooperate with the Company and to
furnish to the Company all such information regarding such Holder, its ownership
of Registrable Securities and the disposition of such securities in connection
with the preparation of the Registration Statement and any filings with any
state securities commissions as the Company may reasonably request, (b) to the
extent required by the Securities Act, to deliver or cause delivery of the
Prospectus contained in the Registration Statement, any amendment or supplement
thereto, to any purchaser of the Registrable Securities covered by the
Registration Statement from the Holder and (c) if requested by the Company, to
notify the Company of any sale of Registrable Securities by such Holder.
Section 11. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with, adversely effects or violates the rights granted to the Holders in this
Agreement; it being understood that the granting of additional demand or
piggyback registration rights with respect to capital stock of the Company shall
not be deemed inconsistent with or adverse to the rights granted to Holders
hereunder, and the rights of the Holders shall be subject to any such additional
grants.
(b) Remedies. Any Person having rights under any provision of this
Agreement will 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 hereby agree to waive the defense in any
action for specific performance or injunctive relief that a remedy at law would
be adequate. Accordingly, any party may in its sole discretion apply to any
court of law or equity of competent jurisdiction (without posting any bond or
other security) for specific performance and for other injunctive relief in
order to enforce or prevent violation of the provisions of this Agreement.
(c) Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement, including the provisions of this sentence, may
be amended, modified, supplemented or waived only upon the prior written consent
of the Company and Holders of a majority of the outstanding Registrable
Securities.
(d) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. The Holders may assign all rights under this agreement; provided,
however, that no Holder may transfer or assign its rights hereunder unless such
transferring Holder shall, prior to any such transfer, obtain from the
16
transferee a joinder agreement in a form reasonably satisfactory to the Company
and deliver a copy of such joinder agreement to the Company and to the Holders.
Only persons (other than the initial Investors hereto) that execute a joinder
agreement shall be deemed to be Holders. The Company shall be given written
notice by the transferring Holder at the time of the transfer stating the name
and address of the transferee and identifying the Registrable Securities
transferred, provided, that, failure to give such notice shall not affect the
validity of such transfer or assignment.
(e) Termination of Registration Rights. The rights of any Holder
to cause the Company to register Registrable Securities under this Agreement
shall terminate with respect to such Holder as soon as such Holder is legally
able to dispose of all of its Registrable Securities in one transaction pursuant
to Rule 144 under the Securities Act.
(f) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected, it being intended that the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, any one of which need not contain the signatures of more than one
party, but each of which when so executed shall be deemed to be an original and
all such counterparts taken together shall constitute one and the same
Agreement.
(h) Descriptive Headings: Interpretation. The descriptive headings
of this Agreement are inserted for convenience of reference only and shall not
limit or otherwise affect the meaning hereof. The use of the word "including" in
this Agreement shall be by way of example rather than by limitation.
(i) Notices. All notices, requests and other communications
provided for or permitted to be given under this Agreement must be in writing
and shall be given by personal delivery, by certified or registered United
States mail (postage prepaid, return receipt requested), by a nationally
recognized overnight delivery service for next day delivery, or by facsimile
transmission, as follows (or to such other address as any party may give in a
notice given in accordance with the provisions hereof):
If to the Company:
COMSYS IT Partners, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
17
with a copy (which shall not constitute notice) to:
Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, P.C.
Facsimile: 214-969-4343
If to an Investor, to the fax number or the address set forth for such
Investor on Exhibit A hereto, with copies as set forth therein.
All notices, requests or other communications will be effective and deemed given
only as follows: (i) if given by personal delivery, upon such personal delivery,
(ii) if sent by certified or registered mail, on the fifth business day after
being deposited in the United States mail, (iii) if sent for next day delivery
by overnight delivery service, on the date of delivery as confirmed by written
confirmation of delivery, (iv) if sent by facsimile, upon the transmitter's
confirmation of receipt of such facsimile transmission, except that if such
confirmation is received after 5:00 p.m. (in the recipient's time zone) on a
business day, or is received on a day that is not a business day, then such
notice, request or communication will not be deemed effective or given until the
next succeeding business day. Notices, requests and other communications sent in
any other manner, including by electronic mail, will not be effective.
(j) GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT
SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED,
CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF
DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF. The parties
hereby irrevocably submit to the jurisdiction of any federal court located in
the State of Delaware or any Delaware state court solely in respect of the
interpretation and enforcement of the provisions of this Agreement and of the
documents referred to in this Agreement, and in respect of the transactions
contemplated hereby, and hereby waive, and agree not to assert, as a defense in
any action, suit or proceeding for the interpretation or enforcement hereof or
of any such document, that it is not subject thereto or that such action, suit
or proceeding may not be brought or is not maintainable in said courts or that
the venue thereof may not be appropriate or that this Agreement or any such
document may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such a Delaware state or federal court. The
parties hereby consent to and grant any such court jurisdiction over the person
of such parties and over the subject matter of such dispute and agree that
mailing of process or other papers in connection with any such action or
proceeding in the manner provided in the Section on notices above or in such
other manner as may be permitted by law shall be valid and sufficient service
thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
18
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
(k) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
19
IN WITNESS WHEREOF the parties hereto have or have caused this Registration
Rights Agreement to be duly executed as of the date first above written
THE COMPANY:
VENTURI PARTNERS, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
THE INVESTORS:
INLAND PARTNERS, L.P.
By: _______________________, its General
Partner
By: ____________________________________
Name: __________________________________
Title: _________________________________
LINKS PARTNERS, L.P.
By: _______________________, its General
Partner
By: ____________________________________
Name: __________________________________
Title: _________________________________
[Signature Page to Amended and Restated Registration Rights Agreement]
MATLINPATTERSON GLOBAL
OPPORTUNITIES PARTNERS, L.P.
By: MatlinPatterson Global Advisors LLC,
its Investment Advisor
By: ____________________________________
Name: __________________________________
Title: _________________________________
ZAZOVE ASSOCIATES, LLC, FOR AND ON
BEHALF OF:
CENTURY NATIONAL INSURANCE COMPANY,
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
SAN DIEGO COUNTY EMPLOYEE RETIREMENT
ASSOCIATION (BONY ACCOUNT),
ZAZOVE CONVERTIBLE SECURITIES FUND,
INC.,
QWEST OCCUPATIONAL HEALTH TRUST,
QWEST PENSION TRUST,
HFR CA SELECT FUND,
ZURICH INSTITUTIONAL BENCHMARKS MASTER
FUND LTD.,
ZAZOVE HIGH YIELD CONVERTIBLE SECURITIES
FUND, L.P.,
ZAZOVE AGGRESSIVE GROWTH FUND,
ZAZOVE GLOBAL CONVERTIBLE FUND, L.P.,
ZAZOVE INCOME FUND, L.P.,
SAN DIEGO COUNTY EMPLOYEES RETIREMENT
ASSOCIATION,
ZAZOVE HEDGED CONVERTIBLE FUND, L.P.
By: ____________________________________
Name: __________________________________
Title: _________________________________
[Signature Page to Amended and Restated Registration Rights Agreement]
R2 INVESTMENTS, LDC
By: Amalgamated Gadget, L.P., its
Investment Manager
By: Scepter Holdings, Inc., its
General Partner
By: ____________________________________
Name: __________________________________
Title: _________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
By: ____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY
By: ____________________________________
Name: __________________________________
Title: _________________________________
SC FUNDAMENTAL VALUE FUND, L.P.
By: SC Fundamental LLC, its General
Partner
By: ____________________________________
Name: __________________________________
Title: _________________________________
SC FUNDAMENTAL VALUE BVI, LTD.
By: SC Fundamental Value BVI, Inc., as
Managing General Partner of its
Investment Manager
By: ____________________________________
Name: __________________________________
Title: _________________________________
[Signature Page to Amended and Restated Registration Rights Agreement]
▇▇▇▇▇▇ ASSOCIATES, LLC
By: ____________________________________
Name: __________________________________
Title: _________________________________
HIGHBRIDGE CAPITAL MANAGEMENT LLC
By: Highbridge Capital Management
By: ____________________________________
Name: __________________________________
Title: _________________________________
▇▇▇▇ ▇▇▇▇▇▇
By: ____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ JTWROS
By: ____________________________________
By: ____________________________________
LC CAPITAL MASTER FUND, LTD.
By: ____________________________________
Name: __________________________________
Title: _________________________________
[Signature Page to Amended and Restated Registration Rights Agreement]
BANK OF AMERICA, N.A., formerly known as
NationsBank, N.A. and Bank of America
Illinois
By: ____________________________________
Name: __________________________________
Title: _________________________________
BANK OF AMERICA STRATEGIC SOLUTIONS,
INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
BNP PARIBAS
By: ____________________________________
Name: __________________________________
Title: _________________________________
BANK ONE, NA
By: ____________________________________
Name: __________________________________
Title: _________________________________
HBV CAPITAL MANAGEMENT LLC
By: ____________________________________
Name: __________________________________
Title: _________________________________
[Signature Page to Amended and Restated Registration Rights Agreement]
EXHIBIT A
Investor Address/Facsimile
-------- -----------------
A-1