EXHIBIT 2
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of November 5, 2003 (this
"Agreement"), by and among Aegis Communications Group, Inc., a Delaware
corporation (the "Company"), Deutsche Bank AG - London acting through DB
Advisors, LLC as investment advisor ("DB"), Essar Global Limited ("Essar" and
collectively with DB, the "Purchasers") and Questor Partners Fund II, L.P., a
Delaware limited partnership ("Fund II"), Questor Side-by-Side Partners II,
L.P., a Delaware limited partnership (the "Side-By-Side Fund"), Questor
Side-by-Side Partners II 3(c)(1), L.P., a Delaware limited partnership (the
"3(C)(1) Fund", and together with Fund II and the Side-by-Side Fund, "Questor"),
▇▇▇▇▇▇ Equity Investors III, L.P., a Delaware limited partnership ("▇▇▇▇▇▇
Equity"), TC Co-Investors, LLC, a Delaware limited liability company ("TC
Co-Investors", and together with ▇▇▇▇▇▇ Equity, "▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇▇, and The
▇▇▇▇▇▇ ▇▇▇▇▇ 1995 Grantor Retained Annuity Trust.
WHEREAS, the Purchasers are purchasing warrants (the "Warrants") to
purchase 527,661,932 shares of the Company's common stock, par value $0.01 per
share (the "Common Stock"), and secured promissory notes in the principal amount
of $15,887,500 (the "Notes") pursuant to that certain Note and Warrant Purchase
Agreement dated as of the date hereof (the "Purchase Agreement"), between the
Company and the Purchasers.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, it is agreed as follows:
1. Definitions. (a) Unless otherwise defined herein, the terms below
shall have the following meanings (such meanings being equally applicable to
both the singular and plural forms of the terms defined):
"Affiliate" shall mean, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with, such specified
Person.
"Agreement" shall mean this Registration Rights Agreement, including
all amendments, modifications and supplements and any exhibits or schedules to
any of the foregoing.
"Business Day" shall mean any day that is not a Saturday, a Sunday or
a day on which commercial banks are required or authorized by law to be closed
in the State of New York.
"Control" (including the terms "Controlled by" and "under common
Control with") means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, as trustee or executor, by
contract or otherwise, including, without limitation, the ownership, directly or
indirectly, of securities having the power to elect a majority of the board of
directors or similar body governing the affairs of such Person.
"Effective Period" shall mean the period commencing with the effective
date of the Shelf Registration Statement and ending upon the earlier of (i) the
termination of the registration rights pursuant to Section 5 hereof and (ii)
such time as the Purchasers cease to own any Registrable Securities.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and all rules and regulations promulgated thereunder.
"Existing Holders" shall mean the Existing Stockholders that hold
Registrable Securities.
"Existing Registrable Securities" shall mean (a) the shares of Common
Stock held by, or issuable upon conversion of preferred stock to, the Existing
Stockholders and (b) any securities issuable or issued or distributed in respect
of any of the Common Stock identified in clause (a) by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization,
reorganization, merger, consolidation or otherwise.
"Existing Stockholders" shall mean Questor, ▇▇▇▇▇▇, ▇▇▇▇▇▇ Blank and
The ▇▇▇▇▇▇ ▇▇▇▇▇ 1995 Grantor Retained Annuity Trust.
"Holders" shall means the Existing Holders and the New Holders.
"NASD" shall mean the National Association of Securities Dealers,
Inc., or any successor entity thereof.
"New Holders" shall mean the Purchasers, and any transferees of the
Purchasers to whom Registrable Securities are permitted to be transferred in
accordance with the terms of this Agreement and the Purchase Agreement, and, in
each case, who continue to be entitled to the rights of a Holder hereunder.
"New Registrable Securities" shall mean (a) the shares of Common Stock
issuable upon exercise of the Warrants and (b) any securities issuable or issued
or distributed in respect of any of the Common Stock identified in clause (a) by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, reorganization, merger, consolidation or otherwise.
"Person" shall mean any individual, corporation, partnership, joint
venture, firm, trust, unincorporated organization, government or any agency or
political subdivision thereof or other entity.
"Prospectus" shall mean the Prospectus (including any summary
Prospectus, preliminary Prospectus and any final Prospectus) included in the
Registration Statement as amended or supplemented by any supplement with respect
to the terms of the offering of any portion of the Registrable Securities
pursuant to a Demand Registration or Piggy-Back Registration and by all other
amendments and supplements thereto, including post-effective amendments and any
material incorporated by reference therein.
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"Registrable Securities" shall mean the Existing Registrable
Securities and the New Registrable Securities. For purposes of this Agreement,
Registrable Securities shall cease to be Registrable Securities when (i) a
Registration Statement covering such Registrable Securities has been declared
effective under the Securities Act by the SEC and such Registrable Securities
have been disposed of pursuant to such effective Registration Statement or (ii)
such Registrable Securities may be sold pursuant to Rule 144(k) of the
Securities Act.
"Registration Statement" shall mean the Demand Registration Statement,
the Piggy-Back Registration Statement and/or the Shelf Registration Statement,
as the case may be, including the Prospectus contained therein, any amendments
to such Registration Statement (including post-effective amendments) and all
exhibits and any material incorporated by reference in such Registration
Statement.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and all rules and regulations promulgated thereunder.
"SEC" shall mean the Securities and Exchange Commission, or any
successor thereto.
(b) The following terms have the meanings set forth in the Section set
forth opposite such term:
Term Section
---- -------
Blackout Period 6
Common Stock Recitals
Demand for Registration 3(c)
Demand Registration 3(a)
Demand Registration Statement 3(a)
Indemnified Party 10(d)
Indemnifying Party 10(d)
Maximum Number of Securities 3(b)
Notes Recitals
Participating Demand Holders 3(a)
Participating Piggy-Back Holders 4(b)
Piggy-Back Registration 4(a)
Piggy-Back Registration Statement 4(a)
Purchase Agreement Recitals
Purchasers Recitals
Shelf Registration Statement 2
Warrants Recitals
2. Shelf Registration Statement. If the Company qualifies for use of
the applicable form of registration statement, within 90 days after the date
hereof, the Company shall file with the SEC, and thereafter use its reasonable
best efforts to have declared effective as soon as practicable after the filing
thereof, a "shelf" Registration Statement (a "Shelf Registration Statement") on
Form S-3 (or any successor form) pursuant to Rule 415 under the Securities Act
or on such other form as may be appropriate under the Securities Act, in each
case, covering the
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resale of all of the New Registrable Securities. The Company shall, subject to
customary terms and conditions, use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective from the date that such
Shelf Registration Statement is declared effective during the Effective Period
to the extent required to permit the disposition (in accordance with the
intended method or methods thereof, as aforesaid) of the New Registrable
Securities so registered.
3. Demand Registration.
(a) After receipt of a written request from one or more New Holders
requesting that the Company effect a registration (a "Demand Registration")
under the Securities Act covering all or part of the Registrable Securities
which specifies the intended method or methods of disposition thereof and the
number of shares to be registered, the Company shall promptly notify all Holders
in writing of the receipt of such request and each such Holder, in lieu of
exercising its rights under Section 4 hereof, may elect (by written notice sent
to the Company within ten (10) Business Days from the date of such Holder's
receipt of the aforementioned notice from the Company) to have all or part of
such Holder's Registrable Securities included in such registration thereof
pursuant to this Section 3, and such Holder shall specify in such notice the
number of Registrable Securities that such Holder elects to include in such
registration. Thereupon, the Company shall, as expeditiously as is practicable,
but in any event no later than thirty (30) days (excluding any days which occur
during a permitted Blackout Period under Section 6 below) after receipt of a
written request for a Demand Registration, file with the SEC and use its
reasonable best efforts to cause to be declared effective a registration
statement (a "Demand Registration Statement") relating to all shares of
Registrable Securities that the Company has been so requested to register by
such Holders ("Participating Demand Holders") for sale, to the extent required
to permit the disposition (in accordance with the intended method or methods
thereof, as aforesaid) of the Registrable Securities so registered; provided,
however, that the aggregate value of the Registrable Securities requested to be
registered (i) be at least $2,500,000, based on the closing trading price of the
Common Stock on the date the demand to file such Demand Registration Statement
is made, (ii) be at least 25% of the New Registrable Securities initially
issuable upon exercise of the Warrants or (iii) include all Registrable
Securities which remain outstanding at such time.
(b) If the majority-in-interest of the Participating Demand Holders in
a Demand Registration relating to a public offering requests that the offering
be underwritten with a managing underwriter selected in the manner set forth in
Section 14 below and such managing underwriter of such Demand Registration
advises the Company in writing that, in its opinion, the number of securities to
be included in such offering is greater than the total number of securities
which can be sold therein without having a material adverse effect on the
distribution of such securities or otherwise having a material adverse effect on
the marketability thereof (the "Maximum Number of Securities"), then the Company
shall include in such Demand Registration the Registrable Securities that the
Participating Demand Holders have requested to be registered thereunder only to
the extent the number of such Registrable Securities does not exceed the Maximum
Number of Securities. If such amount exceeds the Maximum Number of Securities,
the number of Registrable Securities included in such Demand Registration shall
be allocated first, among all the New Holders participating in such Demand
Registration on a pro rata basis (based on the number of Registrable Securities
requested to be included in such
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Demand Registration by each New Holder), and, second, to the Existing Holders on
a pro rata basis (based on the number of Registrable Securities requested to be
included in such Demand Registration by each Existing Holder); provided,
however, that in no event may Registrable Securities held by the Existing
Holders be included in such Demand Registration unless all of the Registrable
Securities requested to be included in the Demand Registration by the New
Holders are included in such Demand Registration. If the amount of such
Registrable Securities does not exceed the Maximum Number of Securities, the
Company may include in such Demand Registration any other securities of the
Company and other securities held by other security holders of the Company as
the Company may in its discretion determine or be obligated to allow, in an
amount, which together with the Registrable Securities included in such Demand
Registration, shall not exceed the Maximum Number of Securities.
(c) New Holders shall be entitled to an aggregate of four (4)
registrations of Registrable Securities pursuant to this Section 3 (each, a
"Demand for Registration") in addition to the Shelf Registration Statement
pursuant to Section 2; provided that a registration requested pursuant to this
Section 3 shall not be deemed to have been effected for purposes of this Section
3(c) unless (i) it has been declared effective by the SEC, (ii) it has remained
effective for the period set forth in Section 7(a), (iii) Holders of Registrable
Securities included in such registration have not, prior to the filing of the
relevant Demand Registration Statement, withdrawn sufficient shares from such
registration such that the remaining Holders requesting registration would not
have been able to request registration under the provisions of Section 3, and
(iv) the offering of Registrable Securities pursuant to such registration is not
subject to any stop order, injunction or other order or requirement of the SEC
(other than any such stop order, injunction, or other order or requirement of
the SEC prompted by act or omission of Holders of Registrable Securities);
provided, however, that if the New Holders participating in such Demand
Registration are not able to register and sell at least two-thirds of the New
Registrable Securities requested to be included in a Demand Registration, then
such Demand Registration shall not be counted as one of the five Demands for
Registration provided for pursuant to this Section 3(c).
(d) Notwithstanding anything to the contrary contained herein, the
Company shall not be required to prepare and file (i) more than two (2) Demand
Registration Statements in any twelve-month period, (ii) any Demand Registration
Statement within 90 days following the date of effectiveness of any other
Registration Statement or (iii) any Demand Registration Statement within 90 days
following the date of effectiveness of any other registration statement filed
pursuant to any other registration rights agreement to which the Company is a
party or with respect to the sale of Common Stock by the Company (or such longer
period of time as may be specified in an underwriting agreement relating to such
registration statement).
4. Piggy-Back Registration.
(a) If the Company proposes to file on its behalf and/or on behalf of
any holder of its securities (other than a Holder of Registrable Securities) a
registration statement under the Securities Act on any form (other than a
registration statement on Form S-4 or S-8 or any successor form for securities
to be offered in a transaction of the type referred to in Rule 145 under the
Securities Act or to employees of the Company pursuant to any employee benefit
plan, respectively) for the registration of Common Stock (a "Piggy-Back
Registration"), it will give
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written notice to all Holders at least twenty (20) days before the initial
filing with the SEC of such registration statement (a "Piggy-Back Registration
Statement"), which notice shall set forth the intended method of disposition of
the securities proposed to be registered by the Company. The notice shall offer
to include in such filing the aggregate number of shares of Registrable
Securities as such Holders may request.
(b) Each Holder desiring to have Registrable Securities registered
under this Section 4 ("Participating Piggy-Back Holders") shall advise the
Company in writing within ten (10) days after the date of receipt of such offer
from the Company, setting forth the amount of such Registrable Securities for
which registration is requested. The Company shall thereupon include in such
filing the number or amount of Registrable Securities for which registration is
so requested, subject to paragraph (c) below, and shall use its reasonable best
efforts to effect registration of such Registrable Securities under the
Securities Act.
(c) If the Piggy-Back Registration relates to an underwritten public
offering and the managing underwriter of such proposed public offering advises
in writing that, in its opinion, the amount of Registrable Securities requested
to be included in the Piggy-Back Registration in addition to the securities
being registered by the Company would be greater than the Maximum Number of
Securities (having the same meaning as defined in Section 3 but replacing the
term "Demand Registration" with "Piggy-Back Registration"), then:
(i) in the event the Company initiated the Piggy-Back Registration,
the Company shall include in such Piggy-Back Registration, first, the
securities the Company proposes to register and, second, the Registrable
Securities of all Participating Piggy-Back Holders, proposed to be included
in such Piggy-Back Registration in an amount which, together with the
securities the Company proposes to register, shall not exceed the Maximum
Number of Securities, such amount to be allocated, first, to the New
Holders requesting Registrable Securities be included in the Piggy-Back
Registration on a pro rata basis (based on the aggregate number of
Registrable Securities requested by such New Holders to be included in the
Piggy-Back Registration Statement) and, second, to the Existing Holders
requesting Registrable Securities be included in the Piggy-Back
Registration Statement on a pro rata basis (based on the aggregate number
of Registrable Securities requested by such Existing Holders to be included
in the Piggy-Back Registration Statement); provided, however, that in no
event may Registrable Securities held by the Existing Holders be included
in such Piggy-Back Registration unless all of the Registrable Securities
requested to be included in such Piggy-Back Registration by the New Holders
are included in such Piggy-Back Registration;
(ii) in the event any holder or holders of securities of the Company
initiated the Piggy-Back Registration, the Company shall include in such
Piggy-Back Registration, first, the securities such initiating security
holder or holders propose to register, second, the Registrable Securities
of all Participating Piggy-Back Holders proposed to be included in such
Piggy-Back Registration, in an amount which, together with the securities
the initiating security holder or holders propose to register, shall not
exceed the Maximum Number of Securities, such amount to be allocated among
such Participating Piggy-Back Holders, first, to the New Holders requesting
Registrable Securities be included in the Piggy-Back Registration Statement
on a pro rata basis (based on the
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aggregate number of Registrable Securities requested by such New Holders to
be included in the Piggy-Back Registration Statement) and, second, to the
Existing Holders requesting Registrable Securities be included in the
Piggy-Back Registration Statement on a pro rata basis (based on the
aggregate number of Registrable Securities requested by such Existing
Holders to be included in the Piggy-Back Registration Statement); provided,
however, that in no event may Registrable Securities held by the Existing
Holders be included in such Piggy-Back Registration unless all of the
Registrable Securities requested to be included in such Piggy-Back
Registration by the New Holders are included in such Piggy-Back
Registration.
(d) The Company will not hereafter enter into any agreement, which is
inconsistent with the rights of priority provided in paragraph (c) above.
5. Termination of Registration Rights. (a) The registration rights set
forth in Sections 1, 2 and 3 above shall terminate at such time as there cease
to be any Registrable Securities.
(b) By execution hereof, the Company and the Existing Stockholders
hereby terminate all registration rights granted pursuant to (i) the Securities
Purchase and Registration Rights Agreement, dated April 7, 1998, by and between
ATC Communications Group, Inc. and ▇▇▇▇▇▇ Equity and (ii) the Series F Senior
Voting Convertible Preferred Stock Purchase and Registration Rights Agreement,
dated August 25, 1999, by and among the Company and the Existing Stockholders.
6. Blackout Periods. The Company shall have the right to delay or
defer the filing or effectiveness of a Registration Statement required pursuant
to Sections 3 and 4 hereof or suspend sales under any Shelf Registration
Statement filed hereunder during no more than three (3) periods aggregating to
not more than 60 days in any twelve-month period (a "Blackout Period") in the
event that (i) the Company would, in accordance with the advice of its counsel,
be required to disclose in the Prospectus information not otherwise then
required by law to be publicly disclosed and (ii) in the reasonable judgment of
the Company's Board of Directors, there is a reasonable likelihood that such
disclosure, or any other action to be taken in connection with the Prospectus,
would materially and adversely affect or interfere with any financing,
acquisition, merger, disposition of assets (not in the ordinary course of
business), corporate reorganization or other similar transaction involving the
Company; provided, however, that the Company shall delay during such Blackout
Period the filing or effectiveness of, or suspend sales under, any Registration
Statement required pursuant to the registration rights of the holders of any
other securities of the Company. The Company shall promptly give the Holders
written notice of such determination containing a general statement of the
reasons for such postponement and an approximation of the anticipated delay.
7. Registration Procedures. Except as otherwise provided herein, if
the Company is required by the provisions of Section 2, 3 or 4 to use its
reasonable best efforts to effect the registration of any of its securities
under the Securities Act, the Company will, as expeditiously as practical:
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(a) prepare and file with the SEC a Registration Statement with
respect to such securities and use its reasonable best efforts to cause
such Registration Statement promptly to become and remain effective for a
period of time required for the disposition of such securities by the
holders thereof but not to exceed 30 days (except with respect to a Shelf
Registration Statement which shall remain effective during the Effective
Period); provided, however, that before filing such Registration Statement
or any amendments or supplements thereto (for purposes of this subsection,
amendments shall not be deemed to include any filing that the Company is
required to make pursuant to the Exchange Act), the Company shall furnish
the representatives of the Holders referred to in Section 7(m) copies of
all documents proposed to be filed, which documents will be subject to the
reasonable review and comment of the representatives' counsel. The Company
shall not be deemed to have used its reasonable best efforts to keep a
Registration Statement effective during the applicable period if it
voluntarily takes any action that would result in the Holders of such
Registrable Securities not being able to sell such Registrable Securities
during that period, unless such action is undertaken for a legitimate
business purpose and the delay in effectiveness is required under
applicable law;
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement as may be necessary to keep such Registration
Statement effective and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all securities covered by
such Registration Statement until the earlier of such time as all of such
securities have been disposed of in a public offering or the expiration of
30 days (except with respect to the Shelf Registration Statement, for which
such period shall be the Effective Period);
(c) furnish to such Holders such number of conformed copies of the
applicable Registration Statement and each such amendment and supplement
thereto (including in each case all exhibits), and of any Prospectus in
conformity with the requirements of the Securities Act, and such other
documents, as such selling security holders may reasonably request;
(d) use its reasonable best efforts to register or qualify the
securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions within the United States
and Puerto Rico as each Holder of such securities shall reasonably request,
to keep such registration or qualification in effect for so long as such
Registration Statement remains in effect, and to take any other action
which may be reasonably necessary to enable such seller to consummate the
disposition in such jurisdictions of the securities owned by such Holder
(provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business, subject
itself to taxation in or to file a general consent to service of process in
any jurisdiction wherein it would not but for the requirements of this
paragraph (d) be obligated to do so; and provided further that the Company
shall not be required to qualify such Registrable Securities in any
jurisdiction in which the securities regulatory authority requires that any
Holder submit any shares of its Registrable Securities to the terms,
provisions and restrictions of any escrow, lockup or similar agreement(s)
for consent to sell Registrable Securities in such jurisdiction unless such
Holder agrees to do so), and do such other reasonable acts and things as
may be required
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of it to enable such Holder to consummate the disposition in such
jurisdiction of the securities covered by such Registration Statement;
(e) furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to Section 3 or 4, if the method of
distribution is by means of an underwriting, on the date that the shares of
Registrable Securities are delivered to the underwriters for sale pursuant
to such registration, or if such Registrable Securities are not being sold
through underwriters, on the date that the Registration Statement with
respect to such shares of Registrable Securities becomes effective, (1) a
signed opinion, dated such date, of the independent legal counsel
representing the Company for the purpose of such registration, addressed to
the underwriters, if any, and if such Registrable Securities are not being
sold through underwriters, then to the Holders making such request, as to
such matters as such underwriters or the Holders holding a majority of the
Registrable Securities included in such registration, as the case may be,
may reasonably request; and (2) letters dated such date and the date the
offering is priced from the independent certified public accountants of the
Company, addressed to the underwriters, if any, and if such Registrable
Securities are not being sold through underwriters, then to the Holders
making such request and, if such accountants refuse to deliver such letters
to such Holders, then to the Company (i) stating that they are independent
certified public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements and
other financial data of the Company included in the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and (ii) covering such other financial
matters (including information as to the period ending not more than five
(5) Business Days prior to the date of such letters) with respect to the
registration in respect of which such letter is being given as such
underwriters or the Holders holding a majority of the Registrable
Securities included in such registration, as the case may be, may
reasonably request and as would be customary in such a transaction;
(f) enter into customary agreements (including, if the method of
distribution is by means of an underwriting, an underwriting agreement in
customary form) and take such other actions as are reasonably required in
order to expedite or facilitate the disposition of such Registrable
Securities;
(g) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make earnings statements
satisfying the provisions of Section 11(a) of the Securities Act generally
available to the Holders no later than 45 days after the end of any
twelve-month period (or 90 days, if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Securities
are sold to underwriters in an underwritten public offering, or (ii) if not
sold to underwriters in such an offering, beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of
the Registration Statement, which statements shall cover said twelve-month
periods, provided that the obligations shall be satisfied by the timely
filing of quarterly and annual reports on Forms 10-Q and 10-K under the
Exchange Act;
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(h) use its reasonable best efforts to cause all such Registrable
Securities to be listed on each securities exchange or quotation system on
which similar securities issued by the Company are listed or traded;
(i) give written notice to the Holders:
(i) when such Registration Statement or any amendment thereto has
been filed with the SEC and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the SEC for amendments or supplements to
such Registration Statement or for additional information;
(iii) of the issuance by the SEC of any stop order suspending the
effectiveness of such Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of
the Common Stock for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the existence of any fact that results in: (A) the
Registration Statement containing an untrue statement of a material
fact or omitting to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and (B) the Prospectus containing an untrue statement of a material
fact or omitting to state a material fact necessary in order to make
the statements therein not misleading (which notice shall be
accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made);
(j) use its reasonable best efforts to prevent the issuance or obtain
the withdrawal of any order suspending the effectiveness of such
Registration Statement at the earliest possible time;
(k) furnish to each Holder, without charge, at least one copy of such
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in
writing, all exhibits (including those, if any, incorporated by reference);
(l) upon the occurrence of any event contemplated by Section 7(i)(v)
above, promptly prepare a post-effective amendment to such Registration
Statement or a supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to the Holders, the
Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. If
the Company notifies the Holders in accordance with Section 7(i)(v) above
to suspend the use of the Prospectus until the requisite changes to the
Prospectus have been made, then
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the Holders shall suspend use of such Prospectus and use their reasonable
best efforts to return to the Company all copies of such Prospectus (at the
Company's expense) other than permanent file copies then in such Holder's
possession, and the period of effectiveness of such Registration Statement
provided for above shall be extended by the number of days from and
including the date of the giving of such notice to the date Holders shall
have received such amended or supplemented Prospectus pursuant to this
Section 7(l);
(m) make reasonably available for inspection by representatives of the
Holders, any underwriter participating in any disposition pursuant to such
Registration Statement and any attorney, accountant or other agent retained
by such representative or any such underwriter all relevant financial and
other records, pertinent corporate documents and properties of the Company
and cause the Company's officers, directors and employees to supply all
relevant information reasonably requested by such representative or any
such underwriter, attorney, accountant or agent in connection with the
registration; and
(n) use its reasonable best efforts to procure the cooperation of the
Company's transfer agent in settling any offering or sale of Registrable
Securities, including with respect to the transfer of physical stock
certificates into book-entry form in accordance with any procedures
reasonably requested by the Holders or the underwriters.
It shall be a condition precedent to the obligation of the Company to
take any action pursuant to this Agreement in respect of the Registrable
Securities which are to be registered at the request of any Holder that such
Holder shall furnish to the Company within ten days of the Company's request
such information regarding the Registrable Securities held by such Holder and
the intended method of disposition thereof as the Company shall reasonably
request and as shall be required in connection with the action taken by the
Company.
8. Expenses. All expenses incurred in connection with each
registration pursuant to Sections 2, 3 and 4 of this Agreement, excluding
underwriters' discounts and commissions, but including without limitation all
registration, filing and qualification fees, word processing, duplicating,
printers' and accounting fees (including the expenses of any special audits or
"comfort" letters required by or incidental to such performance and compliance),
fees of the NASD or listing fees, messenger and delivery expenses, all fees and
expenses of complying with state securities or blue sky laws, fees and
disbursements of counsel for the Company and the reasonable fees and
disbursements of one counsel for the selling Holders (which counsel shall be
selected by the Holders holding a majority in interest of the Registrable
Securities being registered), shall be paid by the Company.
9. Rule 144 Information.
(a) At all times after ninety (90) days after any Registration
Statement covering securities of the Company shall have become effective, the
Company agrees to:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act; and
11
(ii) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities
Act and the Exchange Act.
(b) At all times during which the Company is neither subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, nor exempt
from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, it will
provide, upon the written request of any Holder of Registrable Securities in
written form (as promptly as practicable and in any event within 15 Business
Days), to any prospective buyer of such stock designated by such Holder, all
information required by Rule 144A(d)(4)(i) of the General Regulations
promulgated by the SEC under the Securities Act.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Holder, such
Holder's directors and officers, each person who participates in the offering of
such Registrable Securities, including underwriters (as defined in the
Securities Act), and each person, if any, who controls such Holder or
participating person within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or proceedings in respect thereof) arise out of
or are based on any untrue or alleged untrue statement of any material fact
contained in such registration statement on the effective date thereof
(including any Prospectus filed under Rule 424 under the Securities Act or any
amendments or supplements thereto) or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse each such Holder, such Holder's directors and officers, such
participating person or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable to any Holder, such Holder's directors and officers,
participating person or controlling person 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 an untrue statement or alleged untrue statement or omission or
alleged omission made in connection with such registration statement,
preliminary prospectus, final prospectus or amendments or supplements thereto,
in reliance upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Holder, such Holder's
directors and officers, participating person or controlling person. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any such Holder, such Holder's directors and officers,
participating person or controlling person, and shall survive the transfer of
such securities by such Holder.
(b) Each Holder requesting or joining in a registration severally and
not jointly shall indemnify and hold harmless the Company, each of its directors
and officers, each person, if any, who controls the Company within the meaning
of the Securities Act, and each agent and any underwriter for the Company
(within the meaning of the Securities Act) against any losses, claims, damages
or liabilities, joint or several, to which the Company or any such director,
officer, controlling person, agent or underwriter may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or proceedings
12
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in such registration
statement on the effective date thereof (including any Prospectus filed under
Rule 424 under the Securities Act or any amendments or supplements thereto) or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in such registration statement, preliminary or final
prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished by or on behalf of such Holder
expressly for use in connection with such registration; and each such Holder
shall reimburse any legal or other expenses reasonably incurred by the Company
or any such director, officer, controlling Person, agent or underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the liability of each Holder
hereunder shall be limited to the aggregate net proceeds received by such Holder
in connection with any such registration under the Securities Act.
(c) If the indemnification provided for in this Section 10 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding. If the allocation provided in this paragraph (c) is
not permitted by applicable law, the parties shall contribute based upon the
relevant benefits received by the Company from the initial offering of the
Registrable Securities on the one hand and the net proceeds received by the
Holders from the sale of Registrable Securities on the other.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 10(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
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.
(d) Any Person entitled to indemnification hereunder (the "Indemnified
Party") agrees to give prompt written notice to the indemnifying party (the
"Indemnifying Party") after the receipt by the Indemnified Party of any written
notice of the commencement of
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any action, suit, proceeding or investigation or threat thereof made in writing
for which the Indemnified Party intends to claim indemnification or contribution
pursuant to this Agreement; provided that the failure so to notify the
Indemnified Party shall not relieve the Indemnifying Party of any liability that
it may have to the Indemnifying Party hereunder unless such failure is
materially prejudicial to the Indemnifying Party. If notice of commencement of
any such action is given to the Indemnifying Party as provided above, the
Indemnifying Party shall be entitled to participate in and, to the extent it may
wish, to assume the defense of such action at its own expense, with counsel
chosen by it and reasonably satisfactory to such Indemnified Party. The
Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be paid by the Indemnified Party unless (i) the Indemnifying Party
agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense
of such action, or (iii) the named parties to any such action (including any
impleaded parties) have been advised by such counsel that either (A)
representation of such Indemnified Party and the Indemnifying Party by the same
counsel would be inappropriate under applicable standards of professional
conduct or (B) there are one or more legal defenses available to it which are
substantially different from or additional to those available to the
Indemnifying Party. No Indemnifying Party shall be liable for any settlement
entered into without its written consent, which consent shall not be
unreasonably withheld.
(e) The agreements contained in this Section 10 shall survive the
transfer of the Registration Statement and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
such director, officer or participating or controlling Person.
11. Certain Additional Limitations on Registration Rights.
Notwithstanding the other provisions of this Agreement, the Company shall not be
obligated to register the Registrable Securities of any Holder (i) if such
Holder or any underwriter of such Registrable Securities shall fail to furnish
to the Company necessary information in respect of the distribution of such
Registrable Securities, or (ii) if such registration involves an underwritten
offering, such Registrable Securities are not included in such underwritten
offering on the same terms and conditions as shall be applicable to the other
securities being sold through underwriters in the registration or such Holder
fails to enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwritten offering.
12. Limitations on Registration of Other Securities; Representation.
From and after the date of this Agreement, the Company shall not, without the
prior written consent of a majority-in-interest of the Holders, enter into any
agreement with any holder or prospective holder of any securities of the Company
giving such holder or prospective holder any registration rights the terms of
which are as or more favorable taken as a whole than the registration rights
granted to the Holders hereunder unless the Company shall also give such rights
to the Holders hereunder.
13. No Inconsistent Agreements. The Company will not hereafter enter
into any agreement, with respect to its securities, which is inconsistent in any
material respects with the rights granted to the Holders in this Agreement.
14
14. Selection of Managing Underwriters. In the event the Participating
Demand Holders have requested an underwritten offering, the underwriter or
underwriters shall be selected by the Holders of a majority of the Registrable
Securities proposed to be sold in such Demand Registration and shall be approved
by the Company, which approval shall not be unreasonably withheld or delayed,
provided (i) that all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holders of
Registrable Securities, (ii) that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement shall be
conditions precedent to the obligations of such Holders of Registrable
Securities, and (iii) that no Holder shall be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
Holder, the Registrable Securities of such Holder and such Holder's intended
method of distribution and any other representations required by law or
reasonably required by the lead underwriter. Subject to the foregoing, all
Holders proposing to distribute Registrable Securities through such underwritten
offering shall enter into an underwriting agreement in customary form with the
underwriter or underwriters. Subject to the provisions of Section 9(b), if any
Holder of Registrable Securities disapproves of the terms of the underwriting,
such Holder may elect to withdraw all its Registrable Securities by written
notice to the Company, the managing underwriter and the other Holders
participating in such registration. The securities so withdrawn shall also be
withdrawn from registration.
15. Miscellaneous.
(a) Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of the Agreement was not performed
in accordance with the terms hereof and that the parties hereto shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
(b) Amendments; Waivers. (i) This Agreement may be amended, modified
or supplemented by a written instrument signed by the Company and a majority in
interest of the New Holders; provided, however, that no amendment, modification
or supplement may materially and adversely affect any other Holder without such
Holder's written consent. The Company shall notify all Holders promptly after
any such amendment, modification or supplement shall have taken effect.
(ii) No failure or delay by any party in exercising any right, power
or privilege hereunder (other than a failure or delay beyond a period of time
specified herein) shall operate as a waiver thereof and no single or partial
exercise thereof shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
(c) Notice Generally. All notices, request, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by courier
service, by fax or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses:
15
(i) If to any Holder, at its last known address appearing on the books
of the Company maintained for such purpose.
(ii) If to the Company, at:
Aegis Communications Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as may be substituted by notice given as herein
provided.
(d) Successors and Assigns; Third Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the successors and permitted
assigns of the parties hereto as hereinafter provided. The registration rights
of any Holder with respect to any Registrable Securities shall be transferred to
any Person who is the transferee of such Registrable Securities. All of the
obligations of the Company hereunder shall survive any such transfer. Except as
provided in Sections 3, 4 and 10, no Person other than the parties hereto and
their successors and permitted assigns is intended to be a beneficiary of this
Agreement.
(e) Headings. The headings and subheadings in this Agreement are
included for convenience and identification only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
(f) Governing Law; Jurisdiction. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
(i) Any claim, action, suit or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby may be heard and
determined in any New York state or federal court sitting in The City of
New York, County of Manhattan, and each of the parties hereto hereby
consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts therefrom in any such claim, action, suit or
proceeding) and irrevocably waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of venue of
any such claim, action, suit or proceeding in any such court or that any
such claim, action, suit or proceeding that is brought in any such court
has been brought in an inconvenient forum.
16
(ii) Subject to applicable law, process in any such claim, action,
suit or proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court. Without
limiting the foregoing and subject to applicable law, each party agrees
that service of process on such party as provided in Section 15(c) shall be
deemed effective service of process on such party. Nothing herein shall
affect the right of any party to serve legal process in any other manner
permitted by law or at equity. WITH RESPECT TO ANY SUCH CLAIM, ACTION, SUIT
OR PROCEEDING IN ANY SUCH COURT, EACH OF THE PARTIES IRREVOCABLY WAIVES AND
RELEASES TO THE OTHER ITS RIGHT TO A TRIAL BY JURY, AND AGREES THAT IT WILL
NOT SEEK A TRIAL BY JURY IN ANY SUCH PROCEEDING.
(g) Severability. If, at any time, any provision hereof is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions hereof nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or impaired
thereby.
(h) Entire Agreement. This Agreement, the Purchase Agreement, the
Notes and the Warrants constitute the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersedes all prior agreements and
understandings pertaining thereto.
(i) Cumulative Remedies. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any party
shall not preclude or waive its right to use any or all other remedies. Such
rights and remedies are given in addition to any other rights the parties may
have by law, statute, ordinance or otherwise.
(j) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Signature appears on next page]
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AEGIS COMMUNICATIONS GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and CEO
DEUTSCHE BANK AG - LONDON,
BY DB ADVISORS, LLC AS INVESTMENT
ADVISOR
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
ESSAR GLOBAL LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Director
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QUESTOR:
QUESTOR PARTNERS FUND II, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: Questor General Partner II, L.P.,
its General Partner
Title: Managing Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: Questor Principals II, Inc.,
its General Partner
Title: Managing Director
QUESTOR SIDE-BY-SIDE
PARTNERS II, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: Questor Principals II, Inc.
Title: Managing Director
QUESTOR SIDE-BY-SIDE
PARTNERS II 3(C)(1), L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: Questor Principals II, Inc.
Title: Managing Director
19
TC CO-INVESTORS, LLC
Name: TC Management Partners, LLC
a Delaware limited liability
company, its General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: An Authorized Officer
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ EQUITY INVESTORS III, L.P.
Name: TC Equity Partners, LLC
a Delaware limited liability
company, its General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: An Authorized Officer
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
20
▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
THE ▇▇▇▇▇▇ ▇▇▇▇▇ 1995 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Trustee
21