EXHIBIT 3
STOCKHOLDERS AGREEMENT
By and Among
AEGIS COMMUNICATIONS GROUP, INC.,
CERTAIN STOCKHOLDERS
As Identified herein,
DEUTSCHE BANK AG - LONDON Acting Through
DB ADVISORS, LLC As Investment Advisor,
AND
ESSAR GLOBAL LIMITED
Dated as of November 5, 2003
TABLE OF CONTENTS
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Page
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1. SALES TO THIRD PARTIES..................................................1
1.1 SALES TO THIRD PARTIES.........................................1
1.2 RIGHT OF FIRST OFFER...........................................1
1.3 INVOLUNTARY TRANSFERS..........................................2
2. ELECTION OF DIRECTORS...................................................3
2.1 BOARD MAKE-UP..................................................3
2.2 IRREVOCABLE PROXY..............................................3
2.3 MAJOR DECISIONS................................................4
3. STOCK CERTIFICATE LEGEND................................................5
4. COVENANTS; REPRESENTATIONS AND WARRANTIES...............................6
4.1 NO OTHER ARRANGEMENTS OR AGREEMENTS............................6
4.2 ADDITIONAL REPRESENTATIONS AND WARRANTIES......................7
4.3 AFFILIATE TRANSACTIONS.........................................7
4.4 PREFERRED STOCK CONVERSION.....................................7
5. AMENDMENT AND MODIFICATION..............................................8
6. PARTIES.................................................................8
6.1 ASSIGNMENT BY THE COMPANY......................................8
6.2 ASSIGNMENT GENERALLY...........................................8
6.3 TERMINATION....................................................8
6.4 AGREEMENTS TO BE BOUND.........................................9
7. RECAPITALIZATIONS, EXCHANGES, ETC.......................................9
8. FURTHER ASSURANCES......................................................9
9. GOVERNING LAW...........................................................9
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10. INVALIDITY OF PROVISION.................................................9
11. WAIVER.................................................................10
12. NOTICES................................................................10
13. HEADINGS; EXECUTION IN COUNTERPART.....................................11
14. COUNTERPARTS...........................................................11
15. ENTIRE AGREEMENT.......................................................11
16. INJUNCTIVE RELIEF......................................................11
17. MISCELLANEOUS..........................................................12
18. DEFINED TERMS..........................................................12
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This STOCKHOLDERS AGREEMENT (this "Agreement"), is made effective as
of November 5, 2003, by and among Aegis Communications Group, Inc., a Delaware
corporation (the "Company"), 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 together with Questor, the "Existing Stockholders"),
Deutsche Bank AG - London acting through DB Advisors, LLC as investment advisor
("DB") and Essar Global Limited ("Essar") (DB and Essar, collectively, the "New
Stockholders"). The Existing Stockholders and New Stockholders are herein
referred to collectively as the "Stockholders." Capitalized terms used herein
without definition are defined in Section 18.
The parties hereto agree as follows:
1. SALES TO THIRD PARTIES.
1.1 SALES TO THIRD PARTIES. Any Stockholder may Transfer all or a
portion of its Equity Securities to a third party, provided that such Transfer
is made in compliance with the provisions of Section 1.2 (Right of First Offer)
and Section 6.4 (Agreements to Be Bound). Any Stockholder may Transfer all or a
portion of its Equity Securities to an Affiliate, provided that such Transfer is
made in compliance with Section 6.4 (Agreements to Be Bound). For the purposes
of Section 1.2, a Transfer to a "third party" shall not include a Transfer to
any New Stockholders Assignee or Existing Stockholders Assignee or a Transfer in
a Public Sale (it being understood that there shall be no restriction on any
Transfer in a Public Sale).
1.2 RIGHT OF FIRST OFFER. (a) PROCEDURE. If any Existing Stockholder
(the "Selling Stockholder") desires to Transfer any Equity Securities (other
than any Transfers referred to in the second or final sentence of Section 1.1),
then prior to Transferring such Equity Securities to any third party or parties,
the Selling Stockholder shall deliver to each of the New Stockholders a letter
(the "Sale Notice") signed by it setting forth:
(i) the number of Equity Securities such Selling Stockholder wishes to
Transfer;
(ii) the material terms and conditions on which such Selling
Stockholder wishes to Transfer such shares, including, without limitation, the
purchase price per security of Equity Securities; and
(iii) such Selling Stockholder's offer (irrevocable by its terms for
15 days following receipt) to Transfer to the New Stockholders all (but not less
than all) of such Equity Securities, for a purchase price and on the other terms
and conditions set forth in subparagraph (ii) of this Section 1.2(a).
Within 15 days of receipt of the Sale Notice, the New Stockholders may
agree to purchase in the aggregate all of the Equity Securities covered by the
Sale Notice, and
(A) individually, that portion of such Equity Securities offered by the Selling
Stockholder equal to their pro rata interest in the Company relative to each
other (based on the percentage of outstanding Common Stock Equivalents owned by
each of them on the date of the Sale Notice), (B) such other portion of such
Equity Securities as the New Stockholders may agree upon or (C) in the event
either of the New Stockholders does not exercise such right, all of the Equity
Securities offered to such declining New Stockholder by the Selling Stockholder
in amounts determined pursuant to subclause (A) or (B) above without regard to
such declining New Stockholders, by delivering written notice to such effect to
the Selling Stockholder setting forth closing arrangements and a closing date
not less than 30 nor more than 90 days following the delivery of such notice (or
such later date as is necessary to obtain all requisite governmental and
regulatory approvals and consents).
(b) EFFECTING SALES. If, upon the expiration of 15 days following
receipt by the New Stockholders of the Sale Notice, none of the New Stockholders
shall have agreed to purchase all of the Equity Securities covered by the Sale
Notice, the Selling Stockholder may sell to a third party or parties all, but
not less than all, of the Equity Securities covered by the Sale Notice for at
least 95% of the price and upon substantially the same other terms and
conditions as contained in the Sale Notice; provided that the Selling
Stockholder and the third party execute a binding purchase agreement (subject to
customary closing conditions) within 90 days after the expiration of such 15 day
period and consummate the closing thereunder within 120 days (or such later date
as is necessary to obtain all requisite governmental and regulatory approvals
and consents) from the execution of the binding purchase agreement. If the New
Stockholders shall have agreed to purchase the Equity Securities covered by the
Sale Notice, then the sale of such Equity Securities shall be consummated as
soon as practicable after the delivery of a notice of acceptance by the Selling
Stockholder, but in any event within 90 days of the delivery of the Sale Notice
(or such later date as is necessary to obtain all requisite governmental and
regulatory approvals and consents). The New Stockholders shall have the right to
assign to one or more New Stockholders Assignees all or any of their rights to
purchase Equity Securities pursuant to this Section 1.2.
(c) Notwithstanding anything to the contrary herein, the rights
granted to and obligations imposed on the New Stockholders and the New
Stockholders Assignees, on the one hand, and the Existing Stockholders and the
Existing Stockholders Assignees, on the other hand, pursuant to this Section 1.2
shall terminate upon the third anniversary of the date of this Agreement.
(d) This Section 1.2 shall apply mutatis mutandis hereto, as if one
New Stockholder, on the one hand, and the other New Stockholder, on the other
hand, were the Selling Stockholder and the New Stockholders, respectively;
provided, that for the avoidance of doubt, the New Stockholder that is a Selling
Stockholder shall be deemed to have declined its own offer for purposes of
Section 1.2(a).
1.3 INVOLUNTARY TRANSFERS. Any transfer of title or beneficial
ownership of Equity Securities upon default, foreclosure, forfeit, divorce,
court order or otherwise than by a voluntary decision on the part of a
Stockholder (each, an "Involuntary Transfer") shall be void unless the
Stockholder complies with this Section 1.3 and enables the Company to exercise
in full its rights hereunder. Upon any Involuntary Transfer, the Company
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shall have the right to purchase such Equity Securities pursuant to this Section
1.3 and the person or entity to whom such Equity Securities have been
Transferred (the "Involuntary Transferee") shall have the obligation to sell
such Equity Securities in accordance with this Section 1.3. Upon the Involuntary
Transfer of any Equity Securities, such Stockholder shall promptly (but in no
event later than two days after such Involuntary Transfer) furnish written
notice (the "Notice") to the Company indicating that the Involuntary Transfer
has occurred, specifying the name of the Involuntary Transferee, giving a
detailed description of the circumstances giving rise to, and stating the legal
basis for, the Involuntary Transfer. Upon the receipt of the Notice, and for 60
days thereafter, the Company shall have the right to purchase, and upon exercise
of such right the Involuntary Transferee shall have the obligation to sell, all
(but not less than all) of the Equity Securities acquired by the Involuntary
Transferee for a purchase price equal to the Market Value of such Equity
Securities.
2. ELECTION OF DIRECTORS.
2.1 BOARD MAKE-UP. (a) Each Stockholder agrees that from and after the
Closing such Stockholder will use his, her or its best efforts to nominate and
elect and will vote all of the Equity Securities owned or held of record by him,
her or it that have voting rights to elect and, thereafter for such period, to
continue in office a Board consisting of ten members, three of whom shall be
designated by DB (the "DB Designees"), three of whom shall be designated by
Essar (the "Essar Designees"), one of whom shall be the President and Chief
Executive Officer and three of whom shall be independent of DB, Essar and the
Company. The persons designated pursuant to this Section 2.1 by DB and Essar may
be changed from time to time by DB and Essar, respectively. If the directors are
to be elected in staggered terms, the number of nominees designated by DB and
Essar for each such term shall equal the total number of DB Designees or Essar
Designees, respectively, divided by the number of such terms and rounded up to
the nearest whole number.
(b) The number of DB Designees and Essar Designees will be subject to
reduction as provided in this Section 2.1(b). With respect to DB or Essar,
respectively, upon the occurrence of (i) the First Break Point with respect to
DB or Essar, as the case may be, the number of DB Designees or Essar Designees,
respectively, will be reduced to two such designees, (ii) the Second Break Point
with respect to DB or Essar, as the case may be, the number of DB Designees or
Essar Designees, respectively, will be reduced to one such designee and (iii)
the Third Break Point with respect to DB or Essar, as the case may be, the
number of DB Designees or Essar Designees, respectively, will be reduced to zero
such designees. As soon as practicable after the occurrence of any reduction in
the number of DB Designees or Essar Designees, respectively, pursuant to clauses
(i), (ii) or (iii) in the immediately preceding sentence, DB or Essar,
respectively, shall use reasonable best efforts to cause the resignation of the
number of DB Designee(s) or Essar Designee(s), respectively, in excess of the
number of DB Designees or Essar Designees, respectively, that it is entitled to
designate pursuant to this Section 2.1(b). For the avoidance of doubt, except as
explicitly indicated in this Section 2.1(b), Section 2.1(a) shall remain in full
force, including the obligations of each party to vote for the directors that
such other party is entitled to designate.
2.2 IRREVOCABLE PROXY. In order to effectuate Section 2.1 and, in
addition to and not in lieu of Section 2.1, each Stockholder hereby grants to
the Secretary of the
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Company then in office an irrevocable proxy solely for the purpose of voting all
of the Equity Securities that have voting rights and owned by the grantor of the
proxy for the election of directors nominated only in accordance with Section
2.1.
2.3 MAJOR DECISIONS. (a) Each Stockholder agrees that from and after
the Closing such Stockholder will use his, her or its best efforts, and, where
applicable, will vote all of the Equity Securities owned or held of record by
him, her or it that have voting rights, to cause the By-laws of the Company to
require that (i) at all meetings of the Board a majority of the number of
directors shall constitute a quorum for the transaction of business; provided
that such majority of directors include at least one independent director (so
long as there is more than one independent director serving on the board), at
least one DB Designee and at least one Essar Designee unless and until the Third
Break Point occurs with respect to DB or Essar, as the case may be, (ii) any
committee of the Board be constituted so that the number of DB Designees and
Essar Designees on any such committee be as nearly as possible in the same
proportion as the number of DB Designees and Essar Designees on the entire Board
unless prohibited by applicable law or listing standards; provided that any
committee of the Board shall at all times have a minimum of one DB Designee and
one Essar Designee, unless and until the Third Break Point occurs with respect
to DB or Essar, as the case may be and (iii) any Major Decision (as defined
below) be approved by the affirmative vote of not less than three-fourths of the
directors then serving on the Board; provided that, unless and until the First
Break Point occurs, such Major Decision also be approved by each of at least one
DB Designee and at least one Essar Designee.
(b) The term "Major Decision" means any decision by the Board with
respect to any of the following matters:
(i) issuing any shares or any security, including any indebtedness,
convertible into shares, or any other form of equity in the Company or any
subsidiary of the Company, other than (A) granting options to directors or
employees of the Company pursuant to any incentive or other benefit plan
adopted by the Board, (B) issuing shares of Common Stock pursuant to the
exercise of such options or any other securities outstanding on the date
hereof and (C) issuing shares of Common Stock or any security, including
any indebtedness, convertible into shares of Common Stock, or any other
form of equity in the Company, in one or more offerings (excluding any
issuances referred to in (A) or (B) above);
(ii) adoption of any stock-based employee benefit plan;
(iii) incurring indebtedness or entering into guarantees for borrowed
money (excluding trade payables incurred in the ordinary course of
business) in excess of $2,500,000 in any twelve consecutive month period,
provided, however, that the Board may approve pursuant to this Section
2.3(b)(iii) a revolving credit or similar borrowing facility together with
subsequent draw-downs under such facility without obtaining separate Board
approval for each such draw-down;
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(iv) selling, leasing, pledging or granting a security interest or
encumbrance in all or substantially all of the Company's or any subsidiary
of the Company's assets, except in connection with the incurrence of
indebtedness for borrowed money that does not involve a Major Decision
under the preceding paragraph;
(v) acquiring (whether through an asset purchase, merger, equity
purchase or otherwise) any assets (excluding acquisitions of raw materials
and supplies in the ordinary course of business) having a value,
individually or in the aggregate for any series of related transactions, in
excess of $2,000,000;
(vi) selling or otherwise disposing of any assets (excluding sales or
other dispositions of inventory in the ordinary course of business) having
a value, individually or in the aggregate for any series of related
transactions, in excess of $2,000,000;
(vii) amending the By-laws or the Certificate of Incorporation of the
Company;
(viii) any Change in Control Transaction;
(ix) executing or delivering any assignment for the benefit of
creditors of the Company;
(x) filing any voluntary petition in bankruptcy or receivership with
respect to the Company;
(xi) taking any action while there is a vacancy on the Board,
including without limitation the filling of such vacancy except in
accordance with the terms of this Agreement; or
(xii) changing the size or composition of the Board except in
accordance with this Agreement.
3. STOCK CERTIFICATE LEGEND. A copy of this Agreement shall be filed
with the Secretary of the Company and kept with the records of the Company. Each
certificate representing shares of Common Stock owned by the Stockholders shall
bear upon its face the following legends, as appropriate:
(i) "THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS AND UNTIL REGISTERED UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR UNLESS, IN THE OPINION OF
COUNSEL TO THE STOCKHOLDER,
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WHICH COUNSEL MUST BE, AND THE FORM AND SUBSTANCE OF WHICH
OPINION ARE, REASONABLY SATISFACTORY TO THE ISSUER, SUCH OFFER,
SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER
DISPOSITION IS EXEMPT FROM REGISTRATION OR IS OTHERWISE IN
COMPLIANCE WITH THE ACT AND SUCH LAWS."
(ii) "THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON TRANSFER AND OTHER CONDITIONS, AS SPECIFIED IN
THE STOCKHOLDERS' AGREEMENT OF THE ISSUER DATED AS OF NOVEMBER 5,
2003 (THE "STOCKHOLDERS' AGREEMENT"), COPIES OF WHICH ARE ON FILE
AT THE OFFICE OF THE ISSUER AND WILL BE FURNISHED WITHOUT CHARGE
TO THE HOLDER OF SUCH SHARES UPON WRITTEN REQUEST AND MAY NOT BE
OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS, IN THE OPINION OF COUNSEL TO THE
STOCKHOLDER, WHICH COUNSEL MUST BE, AND THE FORM AND SUBSTANCE OF
SUCH OPINION ARE, REASONABLY SATISFACTORY TO THE ISSUER, SUCH
OFFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER
DISPOSITION IS IN COMPLIANCE WITH THE STOCKHOLDERS' AGREEMENT."
In addition, certificates representing shares of Common Stock owned by residents
of certain states shall bear any legends required by the laws of such states.
All Stockholders shall be bound by the requirements of such legends.
4. COVENANTS; REPRESENTATIONS AND WARRANTIES.
4.1 NO OTHER ARRANGEMENTS OR AGREEMENTS. Each Stockholder hereby
represents and warrants to the Company and to each other Stockholder that he or
she has not entered into or agreed to be bound by any other arrangements or
agreements of any kind that conflict with this Agreement. Each Stockholder
agrees that, except as expressly permitted under this Agreement, he, she or it
will not enter into any such other arrangements or agreements as he, she or it
has represented and warranted to above with any other party as long as any of
the terms of this Agreement, the Note and Warrant Purchase Agreement and the
Registration Rights Agreement remain in effect. Upon the execution of this
Agreement, each of the Stockholders and Voting Agreement dated as of August 25,
1999 among Questor and the stockholders listed on Schedule A thereto and the
Stockholders Agreement dated December 10, 1999 among Questor, ▇▇▇▇▇▇ and the
Company shall terminate and have no further force and effect whatsoever.
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4.2 ADDITIONAL REPRESENTATIONS AND WARRANTIES. (a) Each Stockholder
represents and warrants to the Company and each other Stockholder that:
(i) such Stockholder has the power, authority and capacity (or, in the
case of any Stockholder that is a corporation, trust or limited partnership, all
corporate, trust or limited partnership power and authority, as the case may be)
to execute, deliver and perform this Agreement;
(ii) in the case of a Stockholder that is a corporation, trust or
limited partnership, the execution, delivery and performance of this Agreement
by such Stockholder has been duly and validly authorized and approved by all
necessary corporate, trust or limited partnership action, as the case may be;
(iii) this Agreement has been duly and validly executed and delivered
by such Stockholder and constitutes a valid and legally binding obligation of
such Stockholder, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to creditors' rights generally and general principles of
equity; and
(iv) the execution, delivery and performance of this Agreement by such
Stockholder does not and will not violate the terms of or result in the
acceleration of any obligation under (A) any material contract, commitment or
other material instrument to which such Stockholder is a party or by which such
Stockholder is bound or (B) in the case of a Stockholder that is a corporation,
trust or limited partnership, the certificate of incorporation, certificate of
limited partnership, by-laws, limited partnership agreement or other
organizational documents, as the case may be.
4.3 AFFILIATE TRANSACTIONS. Each of the New Stockholders hereby agrees
not to, and to cause each of its Affiliates not to, engage in any transaction
with the Company or any subsidiary or Affiliate of the Company unless each such
transaction is on terms that could be obtained on an arm's length, commercially
reasonable basis from unrelated parties.
4.4 PREFERRED STOCK CONVERSION. (a) As of the date hereof, Questor
agrees to and hereby does convert (i) 9,058.42 shares of Series E Preferred
Stock of the Company, representing all of its Series E Preferred Stock
immediately prior to such conversion, into 381,407.11 shares of Common Stock of
the Company in accordance with the conversion rate set forth in the certificate
of designation governing the Series E Preferred Stock and (ii) 23,375 shares of
Series F Preferred Stock of the Company, representing 50% of Questor's Series F
Preferred Stock immediately prior to such conversion, into 34,527,594.305 shares
of Common Stock of the Company in accordance with the conversion rate set forth
in the certificate of designation governing the Series F Preferred Stock. As of
the Subsequent Closing Date (as defined in the Purchase Agreement) Questor
agrees to and will convert its remaining 23,375 shares of Series F Preferred
Stock of the Company into 46,910,503 shares of Common Stock of the Company in
accordance with the conversion rate set forth in the then-effective certificate
of designation governing the Series F Preferred Stock, subject to completion of
the Preferred Stock Amendment (as defined in the Purchase Agreement) and the
satisfaction of the ▇▇▇▇▇▇ Condition (as defined in the Purchase Agreement).
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(b) Questor hereby waives all of its rights under the certificate of
designations of the Series F Preferred Stock other than the rights set forth in
Sections 6(a), 7(a) through (c), 7(e), 7(f), 7(i) through (j), and 7(p) through
(t). The Company hereby agrees with Questor to complete and cause to become
effective the Preferred Stock Amendment (as defined in the Purchase Agreement).
▇▇▇▇▇▇ hereby agrees with Questor to cause the ▇▇▇▇▇▇ Condition (as defined in
the Purchase Agreement) to be satisfied. If the Company changes (or establishes
a record date for changing) the number of shares of Common Stock issued and
outstanding prior to the Subsequent Closing Date (as defined in the Purchase
Agreement) as a result of a stock split, stock dividend, recapitalization,
subdivision, reclassification, combination, exchange of shares or similar
transaction with respect to the outstanding shares of Common Stock, then the
number of shares into which the Series F Preferred (as defined in the Purchase
Agreement) shall be convertible pursuant to the Preferred Stock Amendment shall
be appropriately adjusted to preserve the percentage ownership of the Common
Stock that the holders of the Series F Preferred would otherwise obtain if the
Preferred Stock Amendment were effected and the Series F Preferred outstanding
immediately after the Closing were converted on the date hereof.
5. AMENDMENT AND MODIFICATION. This Agreement may not be amended,
modified or supplemented except by a written instrument signed by each of the
parties hereto and, in the case of an amendment, modification or supplement that
would materially and adversely affect any other Stockholder, any such other
Stockholder. The Company shall notify all Stockholders promptly after any such
amendment, modification or supplement shall have taken effect.
6. PARTIES.
6.1 ASSIGNMENT BY THE COMPANY. If the Company has not exercised in
full its right to purchase Equity Securities pursuant to Section 1.3 within 30
days of receipt by the Company of the Notice giving rise to such right, then the
New Stockholders (other than any New Stockholders subject to such Involuntary
Transfer) shall have the right to require the Company to assign to such New
Stockholders such right to purchase those Equity Securities not being purchased
by the Company. The New Stockholders shall have the right to assign to one or
more of the New Stockholders Parties all or any of their rights to purchase
Equity Securities pursuant to this Section 6.1.
6.2 ASSIGNMENT GENERALLY. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, legal representatives, successors and assigns, provided that the Company
may not assign any of its rights or obligations hereunder without the consent of
the New Stockholders and provided, further, that no Stockholder may assign any
of its rights or obligations hereunder without the prior written consent of the
New Stockholders, unless such assignment is in connection with a Transfer
explicitly permitted by this Agreement and, prior to such assignment, such
assignee complies with the requirements of Section 6.4.
6.3 TERMINATION. Any party to, or person who is subject to, this
Agreement which ceases to own Equity Securities or any interest therein, shall
cease to be a party to, or person who is subject to, this Agreement and
thereafter shall have no rights or obligations hereunder, provided, however,
that a Transfer of Equity Securities not explicitly
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permitted under this Agreement shall not relieve a Stockholder of any of his or
her obligations hereunder. Notwithstanding the foregoing, in connection with a
Transfer to an Affiliate explicitly permitted by this Agreement, prior to any
such Person ceasing to be an Affiliate of the Stockholder from whom such Person
acquired its Equity Securities, such Person shall be obligated to transfer such
Equity Securities back to such original Stockholder and such original
Stockholder shall thereupon again be subject to this Agreement. Notwithstanding
any other provision in this Agreement, this Agreement shall terminate and be of
no further force or effect at such time as each of the New Stockholders Parties
beneficially own less than 5% of the outstanding Equity Securities.
6.4 AGREEMENTS TO BE BOUND. Notwithstanding anything to the contrary
contained in this Agreement, any Transfer of Equity Securities by a Stockholder
(other than pursuant to a Public Sale) shall be permitted under the terms of
this Agreement only if the transferee of such Stockholder shall agree in writing
to be bound by the terms and conditions of this Agreement pursuant to an
instrument of assumption reasonably satisfactory in substance and form to the
New Stockholders, and, in the case of a transferee who is an individual and who
resides in a state with a community property system, such transferee causes his
or her spouse, if any, to execute a Spousal Waiver in the form of Exhibit A
attached hereto. Upon the execution of the instrument of assumption by such
transferee and, if applicable, the Spousal Waiver by the spouse of such
transferee, such transferee shall have the rights and be subject to all of the
restrictions and obligations of his or her transferor hereunder.
7. RECAPITALIZATIONS, EXCHANGES, ETC. Except as otherwise provided
herein, the provisions of this Agreement shall apply to the full extent set
forth herein with respect to (A) the Equity Securities and (B) any and all
shares of capital stock of the Company or any successor or assign of the Company
(whether by merger, consolidation, sale of assets or otherwise) which may be
issued in respect of, in exchange for, or in substitution for the Equity
Securities by reason of any stock dividend, split, reverse split, combination,
recapitalization, reclassification, merger, consolidation or otherwise. All
share numbers and percentages shall be proportionately adjusted to reflect any
stock split, stock dividend or other subdivision or combination effected after
the date hereof. Except as otherwise provided herein, this Agreement is not
intended to confer upon any person, except for the parties hereto, any rights or
remedies hereunder.
8. FURTHER ASSURANCES. Each party hereto shall do and perform or cause
to be done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments and documents as
any other party hereto or person subject hereto may reasonably request in order
to carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
9. GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder and the persons subject hereto shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Delaware,
without giving effect to the choice of law principles thereof.
10. INVALIDITY OF PROVISION. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability
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of the remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any other
jurisdiction.
11. WAIVER. Waiver by any party hereto of any breach or default by the
other party of any of the terms of this Agreement shall not operate as a waiver
of any other breach or default, whether similar to or different from the breach
or default waived. No waiver of any provision of this Agreement shall be implied
from any course of dealing between the parties hereto or from any failure by
either party to assert its or his or her rights hereunder on any occasion or
series of occasions.
12. NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (A) delivered
personally, (B) mailed, certified or registered mail with postage prepaid, (C)
sent by next-day or overnight mail or delivery or (D) sent by fax, as follows
(or to such other address as the party entitled to notice shall hereafter
designate in accordance with the terms hereof):
(i) If to the Company, to it at:
Aegis Communications Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
with a copy to Questor and ▇▇▇▇▇▇ at their addresses set forth
below.
(ii) If to ▇▇▇▇▇▇, to it at:
▇▇▇▇▇▇ Capital Management Partners
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
(iii) If to Questor, to it at:
c/o Organization Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
Questor Management Company
10
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
(iv) if to the New Stockholders:
DB Advisors, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile:
Attention:
Essar Global Limited
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (▇▇)
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
All such notices, requests, demands, waivers and other communications shall be
deemed to have been received (A) if by personal delivery on the day after such
delivery, (B) if by certified or registered mail, on the fifth business day
after the mailing thereof, (C) if by next-day or overnight mail or delivery, on
the day delivered, or (D) if by fax, on the next day following the day on which
such fax was sent, provided that a copy is also sent by certified or registered
mail.
13. HEADINGS; EXECUTION IN COUNTERPART. The headings to sections in
this Agreement are for the convenience of the parties only and shall not control
or affect the meaning or construction of any provision hereof.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
15. ENTIRE AGREEMENT. This Agreement, the Note and Warrant Purchase
Agreement and the Registration Rights Agreement constitute the entire agreement
and understanding of the parties hereto with respect to the matters referred to
herein. This Agreement and the agreements referred to in the preceding sentence
supersede all prior agreements and understandings among the parties with respect
to such matters.
16. INJUNCTIVE RELIEF. The parties hereto agree that the Company and
the Stockholders will be irreparably damaged in the event this Agreement is not
specifically enforced. Each of the parties therefore agrees that in the event of
a breach of any provision of this Agreement, the aggrieved party may elect to
institute and prosecute proceedings in any court of competent jurisdiction to
enforce specific performance or to enjoin the continuing breach of this
Agreement. Such remedies shall be cumulative and not exclusive, and shall be in
addition to any other remedy which the Company or any Stockholder may have. Each
Stockholder hereby
11
irrevocably submits to the non-exclusive jurisdiction of the state and federal
courts in New York for the purposes of any suit, action or other proceeding
arising out of or based upon this Agreement or the subject matter hereof. Each
Stockholder hereby consents to service of process made in accordance with
Section 12.
17. MISCELLANEOUS. All references in this Agreement to Sections of or
Rules under the Securities Act or the Exchange Act are intended to include, and
shall be deemed to include, references to all successor Sections and Rules which
are intended to replace the Sections and Rules herein referenced.
18. DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings ascribed to them below:
"Affiliate" means a person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the Person specified, including, without limitation, with regard to the
New Stockholders or the Existing Stockholders, any partner or member of the New
Stockholders or the Existing Stockholders, respectively; provided that no Person
shall be deemed to be an Affiliate of another Person solely as a result of this
Agreement, the Note and Warrant Purchase Agreement and the Registration Rights
Agreement or the other agreements contemplated thereby, or solely as a result of
the ownership of Common Stock Equivalents.
"Beneficially own" has the meaning given in Rule 13d-3 under the
Exchange Act.
"Board" means the board of directors of the Company.
"Change in Control Transaction" means any of the following:
(a) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act),
other than the Company, or any of its Subsidiaries or any Investor or
Excluded Group (an "Acquiring Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 35%
or more of the combined voting power or economic interests of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors; provided, however, that any
transfer from any Investor or Excluded Group will not result in a
Change in Control if such transfer was part of one or a series of
related transactions the effect of which, absent the transfer to such
Acquiring Person by the Investor or Excluded Group, would not have
resulted in the acquisition by such Acquiring Person of 35% or more of
the combined voting power or economic interests of the then
outstanding voting securities; or
(b) the individuals who at the beginning of any 12 consecutive
month period following the Closing constituted a majority of the
directors of the Company (the "Incumbent Majority") cease for any
reason to constitute at least a majority of such directors; provided
that (I) any individual becoming a director whose election, or
nomination for election by the Company's stockholders
12
pursuant to this Agreement, was approved by a vote of the stockholders
having the right to designate such director pursuant to this Agreement
and (II) any director whose election to the Board or whose nomination
for election by the stockholders of the Company was approved by the
Incumbent Majority, shall, in each such case, be considered as though
such individual were a member of the Incumbent Majority, but
excluding, as a member of the Incumbent Majority, any such individual
whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the directors
of the Company (as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act) and further excluding any
person who is an affiliate or associate of an Acquiring Person having
or proposing to acquire beneficial ownership of 25% or more of the
combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors; or
(c) the approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to
which all or substantially all of the individuals and entities who
were the respective beneficial owners of the voting securities of the
Company or its parent immediately prior to such reorganization, merger
or consolidation do not, following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more than 51%
of the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of the Company
or its parent resulting from such reorganization, merger or
consolidation; or
(d) the sale or other disposition of assets representing 50% or
more of the assets of the Company and its subsidiaries in one
transaction or series of related transactions.
"Closing" means the date hereof.
"Common Stock" means the common stock of the Company, par value $.01
per share.
"Common Stock Equivalents" means the number of shares of Common Stock
owned beneficially or of record by the New Stockholders or the Existing
Stockholders, as the case may be, as of the date of this Agreement. In the event
that any New Stockholder Party or Existing Stockholder Party acquires beneficial
or record ownership of any Equity Securities after the date of this Agreement
which are not Common Stock Equivalents pursuant to the immediately preceding
sentence, any Equity Securities thereafter Transferred by such Person shall be
deemed to be such after acquired Equity Securities until the number of such
after acquired Equity Securities owned beneficially or of record by such Person
has been reduced to 0.
"Equity Security" means any stock or similar security of the Company
or any security (including indebtedness for borrowed money) convertible or
exchangeable, with or without consideration, into or for any such stock or
similar security, or any security (including
13
indebtedness for borrowed money) carrying any warrant or right to subscribe to
or purchase any such stock or similar security, or any such warrant or right.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Group" means a "group" (as such term is used in Rule 13d-5
of the Exchange Act) that includes one or more of the Investors, including,
without limitation, for the purpose of this definition only, any party to this
Agreement.
"Existing Stockholders Assignee" means the Existing Stockholders and
any Affiliate of any Existing Stockholders, and, in the case of any individual,
such individual's spouse, parents, immediate family or lineal descendants.
"Existing Stockholder Parties" means the Existing Stockholders, the
Existing Stockholders Assignees and any third party other than an Involuntary
Transferee or New Stockholder Party who receives Equity Securities from any
Existing Stockholder or any Existing Stockholders Assignee pursuant to Section 1
of this Agreement.
"First Break Point" means the time at which the Total Ownership Ratio
for either DB or Essar, as the case may be, is less than 50% but greater than
25%.
"Investor" means Questor or ▇▇▇▇▇▇ or their respective Affiliates.
"Involuntary Transfer" has the meaning set forth in Section 1.3.
"Market Value" means, as of any date: (i) if any Equity Securities are
listed on a national securities exchange, the average of the closing prices as
reported for composite transactions during the 30 consecutive trading days
preceding the trading day immediately prior to such date or, if no sale occurred
on a trading day, then the mean between the closing bid and asked prices on such
exchange on such trading day; (ii) if any Equity Securities are traded on the
Nasdaq National Market ("NMM"), the average of the closing prices as reported on
the NMM during the 30 consecutive trading days preceding the trading day
immediately prior to such date or, if no sale occurred on a trading day, then
the mean between the highest bid and lowest asked prices as of the close of
business on such trading day, as reported on the NMM; (iii) if any Equity
Securities are not traded on a national securities exchange or the NMM but are
otherwise traded over-the-counter, the arithmetic average (for consecutive
trading days) of the mean between the highest bid and lowest asked prices as of
the close of business during the 30 consecutive trading days preceding the
trading day immediately prior to such date as quoted on the National Association
of Securities Dealers Automated Quotation system or an equivalent generally
accepted reporting service; or (iv) if there is no active market for any Equity
Securities, the market value thereof as mutually agreed by the Company and a
majority of the Board including a majority of the independent directors.
"New Stockholders Assignee" means the New Stockholders and any
Affiliate of the New Stockholders, and, in the case of any individual, such
individual's spouse, parents, immediate family or lineal descendants.
14
"New Stockholders Parties" means the New Stockholders, any New
Stockholders Assignee and any third party other than an
Involuntary Transferee or Existing Stockholder Party who receives Equity
Securities from the New Stockholders or any the New Stockholders Assignee
pursuant to a Transfer to which Section 1.2 hereof applies.
"Note and Warrant Purchase Agreement" means the Note and Warrant
Purchase Agreement among the Company and the New Stockholders dated as of the
date of this Agreement.
"Person" means an individual, corporation, partnership, limited
liability company, joint venture, association, trust or other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Public Sale" means Transfers (I) to the general public pursuant to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement, (II) to or through a broker or
dealer or underwriter in a public distribution or a public securities
transaction, or (III) in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act under Section 4(1)
thereof so that all transfer restrictions and restrictive legends with respect
to such Common Stock are removed upon the consummation of such Transfer and the
transferor and transferee of such Common Stock receive an opinion of counsel for
the Company, which shall be in form and content reasonably satisfactory to the
transferor and transferee and their respective counsel, to the effect that such
Common Stock in the hands of the transferee is freely transferable without
restriction or registration under the Securities Act in a public or private
transaction, or (IV) pursuant to Rule 144 or Rule 144A under the Securities Act;
provided that a Public Sale shall not include Transfers of more than 5% of the
Common Stock of the Company on a fully diluted basis by any party in one or a
series of related transactions to any single Person or group (as defined in Rule
13d-5 under the Exchange Act).
"Purchase Agreement" means the Note and Warrant Purchase Agreement by
and among the Company and the New Stockholders dated as of the date of this
Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement among the Company and the New Stockholders dated as of the date of
this Agreement.
"Second Break Point" means the time at which the Total Ownership Ratio
for either DB or Essar, as the case may be, is less than 25% but greater than
10%.
"Securities Act" means the Securities Act of 1933, as amended.
"Third Break Point" means the time at which the Total Ownership Ratio
for either DB or Essar, as the case may be, is less than 10%.
"Total Ownership" means, with respect to any party, the total Common
Stock Equivalents owned beneficially or of record by such party after giving
effect to the consummation of all of the transactions contemplated by the Note
and Warrant Purchase
15
Agreement (and assuming that all warrants held by such party have been
exercised) and without giving effect to any subsequent dispositions of Common
Stock Equivalents by such party.
"Total Ownership Ratio" means, with respect to any party, the total
Common Stock Equivalents owned beneficially or of record by such party upon the
date of determination divided by Total Ownership of such party.
"Transfer" means any direct or indirect sale, assignment, mortgage,
transfer, pledge, hypothecation or other disposal other than the exercise,
conversion or exchange of any option, warrant or convertible security.
[Remainder of this page left blank intentionally]
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
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
17
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
18
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: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
19
EXHIBIT A
Spousal Waiver
--------------
[INSERT NAME] hereby waives and releases any and all equitable or legal claims
and rights, actual, inchoate or contingent, which he or she may acquire with
respect to the disposition, voting or control of the shares of Common Stock
subject to the Stockholders' Agreement of Aegis Communications Group, Inc.,
dated as of _______, 2003, as the same shall be amended from time to time,
except for rights in respect of the proceeds of any disposition of such Common
Stock.
-------------------------
Name:
20