REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of the
____ day of _______, 1996, among West TeleServices Corporation, a Delaware
corporation (the "Company") and the undersigned stockholders of the Company
(collectively, the "Stockholders").
In consideration of the mutual covenants and undertakings contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and subject to and on the terms and conditions
herein set forth, the parties agree as follows:
ARTICLE 1. CERTAIN DEFINITIONS; RULES OF CONSTRUCTION.
1.1 CERTAIN DEFINITIONS. Unless otherwise defined herein or the context
otherwise requires, the terms defined in this Section 1.1 shall have the
meanings herein specified for all purposes of this Agreement, applicable to both
the singular and plural forms of any of the terms herein defined.
(a) "Business Day" means any day on which the New York Stock Exchange
is open for trading.
(b) "Closing Date" means the date of this Agreement.
(c) "Common Stock" means the common stock, par value $0.01 per share,
of the Company, and any securities of the Company or any successor which
may be issued on or after the date hereof in respect of, or in exchange
for, shares of common stock pursuant to merger, consolidation, stock split,
stock dividend, recapitalization of the Company or otherwise.
(d) "Eligible Securities" means any shares of Common Stock held by any
of the Stockholders or any direct or indirect transferee of a Stockholder.
As to any proposed offer or sale of Eligible Securities, such securities
shall cease to be Eligible Securities with respect to such proposed offer
or sale when (a) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement or (b) all of such securities are permitted to be distributed
concurrently pursuant to Rule 144 (or any successor provision to such Rule)
under the Securities Act or are otherwise freely transferable to the public
without registration pursuant to Section 4(1) of the Securities Act. In
the event the Company prepares a registration statement pursuant to Article
3 or 4 hereof which becomes effective, and the Holder fails to dispose of
Eligible Securities pursuant to said registration statement, the Eligible
Securities shall remain Eligible Securities but the Holder shall be
responsible for assuming the Holder's pro rata share of the Registration
Expenses in connection with such registration.
(e) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC thereunder, all as the
same shall be in effect at the relevant time.
(f) "Fair Value" means, in the case the Eligible Securities which have
previously been Publicly Traded for a period of at least twelve (12)
months, the Market Value thereof (if such value, as so defined, can be
determined) or, in the case the Eligible Securities which have not been
Publicly Traded for at least such period, the fair value per share, on a
fully distributed basis, as determined by an independent investment banking
firm experienced in the valuation of securities selected in good faith by
the Board of Directors of the Company, or if no such investment banking
firm is, as determined in good faith by the Board of Directors, available
to make such determination, in good faith by the Board of Directors.
(g) "Holder" means any Person that is the owner of record of Eligible
Securities.
(h) "Market Value" means the average of the high and low reported
sales price regular way of a share of Eligible Securities on such Trading
Day or, in the case no such reported sale takes place on such Trading Day,
the average of the reported closing bid and asked prices regular way of a
share of Eligible Securities on such Trading Day, in either case as
reported on the New York Stock Exchange Composite Tape or, if the shares of
Eligible Securities are not listed or admitted to trading on such Exchange
on such Trading Day, on the principal national securities exchange in the
United States on which the shares of Eligible Securities are listed or
admitted to trading or, if not listed or admitted to trading on any
national securities exchange on such Trading Day, on the Nasdaq National
Market System or, if the shares of Eligible Securities are not listed or
admitted to trading on any national securities exchange or quoted on such
National Market System on such Trading Day, the average of the closing bid
and asked prices of a share of Eligible Securities in the over-the-counter
market on such Trading Day as furnished by any New York Stock Exchange
member firm selected from time to time by the Company or, if such closing
bid and asked prices are not made available by any such New York Stock
Exchange member firm on such Trading Day, the Fair Value of a share of
Eligible Securities.
(i) "Party" means any party to this Agreement.
(j) "Person" means an individual, a partnership (general or limited),
corporation, joint venture, business trust, cooperative, association or
other form of business organization, whether or not regarded as a legal
entity under applicable law, a trust (inter vivos or testamentary), an
estate of a deceased, insane or incompetent person, a quasi-governmental
entity, a government or any agency, authority, political subdivision or
other instrumentality thereof, or any other entity.
(k) "Publicly Traded" means any security (i) which is listed for
trading on any national securities exchange or quoted in the Nasdaq
National Market System (or any comparable interdealer quotation system then
in effect) and (ii) the issuer of which is
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required to file periodic reports to the SEC pursuant to Sections 13 or
15(d) of the Exchange Act.
(l) "Registration Expenses" means all expenses incident to the
Company's performance of or compliance with the registration requirements
set forth in this Agreement including, without limitation, the following:
(i) the fees, disbursements and expenses of the Company's counsel(s) and
accountants in connection with the registration of Eligible Securities to
be disposed of under the Securities Act and the fees, disbursements and
expenses of one counsel for all the Holders of Eligible Securities in an
amount not to exceed $15,000; (ii) all expenses in connection with the
preparation, printing and filing of the registration statement, any
preliminary prospectus or final prospectus, any other offering document and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the underwriters and dealers; (iii) the cost of printing or
producing any agreement(s) among underwriters, underwriting agreements(s)
and blue sky or legal investment memoranda, any selling agreements and any
other documents in connection with the offering, sale or delivery of
Eligible Securities to be disposed of; (iv) all expenses in connection with
the qualification of Eligible Securities to be disposed of for offering and
sale under state securities laws, including the fees and disbursements of
counsel for the underwriters in connection with such qualifications and in
connection with any blue sky and legal investment surveys; (v) the filing
fees incident to securing any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of Eligible
Securities to be disposed of; and (vi) the fees and expenses incurred in
connection with the listing of Eligible Securities on each securities
exchange on which securities of the same class are then listed; provided,
however, that Registration Expenses with respect to any registration
pursuant to this Agreement shall not include (A) underwriting discounts or
commissions attributable to Eligible Securities, (B) transfer taxes
applicable to Eligible Securities or (C) SEC filing fees with respect to
shares of Common Stock to be sold by the Holder thereof.
(m) "Registration Statement" means a registration statement (other
than under Form S-8) filed, or proposed to be filed, with the SEC under the
Securities Act covering shares of capital stock or other securities of the
Company.
(n) "SEC" means the Securities and Exchange Commission.
(o) "Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder, all as the same shall be
in effect at the relevant time.
(p) "Significant Stockholders" means, collectively, ▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇
▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇, and their respective heirs, transferees (direct
or indirect) and assigns.
(q) "Trading Day" means each Business Day other than any day on which
the Eligible Securities are not traded on any national securities exchange
or quoted in the Nasdaq National Market System or in the over-the-counter
market.
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1.2 RULES OF CONSTRUCTION. The following rules of construction apply to
the provisions of this Agreement unless the context otherwise requires.
(a) The Parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement.
(b) Any reference to any federal, state, local, or foreign statute or
law shall be deemed also to refer to (i) all rules and regulations
promulgated thereunder and (ii) such statute or law as amended, modified or
supplemented from time to time (including any successor statute or law).
(c) The words "include," "including," and "includes" shall be deemed
to be followed by the words "without limitation."
(d) Any reference herein to a "Section," "Article," or "clause" shall
mean the applicable section, article, or clause of this Agreement.
(e) Words such as "herein," "hereinafter," "hereof," "hereto,"
"hereby," and "hereunder," when used with reference to this Agreement refer
to this Agreement as a whole.
(f) The article, section and subsection headings, if any, used herein
are inserted for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
(g) As used in this Agreement, the masculine, feminine or neuter
gender, and the singular or plural, shall be deemed to include the others.
(h) The use of a verb in the present tense includes the future tense.
(i) The word "or" is not exclusive.
ARTICLE 2. EFFECTIVENESS.
The registration rights pursuant to Articles 3 and 4 hereof shall become
effective on the Closing Date and shall terminate when there cease to be
Eligible Securities.
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ARTICLE 3. DEMAND REGISTRATION.
3.1 NOTICE. At any time or from time to time following the Closing Date,
upon written notice from any Significant Stockholder requesting that the Company
effect the registration under the Securities Act of all or part of the Eligible
Securities held by such Significant Stockholder, which notice shall specify the
number of Eligible Securities intended to be registered and the intended method
or methods of disposition of such Eligible Securities, the Company will use
reasonable efforts to effect (at the earliest possible date) the registration,
under the Securities Act, of such Eligible Securities for disposition in
accordance with the intended method or methods of disposition stated in such
request, provided that:
(a) the Company shall be obligated to register the Eligible Securities
upon receipt of a registration request only if the Eligible Securities to
be registered have a Fair Value at both the time of receipt of the request
and the filing of the Registration Statement of at least Ten Million
Dollars ($10,000,000);
(b) if, following receipt of a registration request pursuant to this
Article 3 but prior to the filing of a registration statement or the
effective date of a registration statement filed in respect of such
request, (i) the Board of Directors of the Company, in its reasonable
judgment and in good faith, resolves that (A) the filing of a registration
statement or a sale of Eligible Securities pursuant thereto would
materially interfere with any significant acquisition, corporate
reorganization or other similar transactions involving the Company or (B)
the filing of a registration statement or a sale of Eligible Securities
pursuant thereto would require disclosure of material information that the
Company has a bona fide material business purpose for preserving as
confidential or (C) the Company is unable to comply with SEC requirements,
and (ii) the Company gives the Significant Stockholder(s) having made such
request written notice of such determination (which notice shall include a
copy of such resolution), the Company shall, notwithstanding the provisions
of this Article 3, be entitled to postpone for up to ninety (90) days the
filing or effectiveness of any registration statement otherwise required to
be prepared and filed by it pursuant to this Article 3; provided, however,
that the Company shall not be entitled to postpone such filing or
effectiveness if, within the preceding twelve (12) months, it has effected
a postponement pursuant to this clause (b) and, following such
postponement, the Eligible Securities to be sold pursuant to the postponed
registration were not sold (for any reason);
(c) if the Company shall have previously effected a registration with
respect to Eligible Securities pursuant to Article 4 hereof, the Company
shall not be required to effect a registration pursuant to this Article 3
until a period of one hundred and eighty (180) days shall have elapsed from
the effective date of the most recent registration under Article 4 hereof;
(d) the intended method or methods of disposition shall not include a
"shelf registration" whereby shares of Common Stock are sold from time to
time in multiple transactions; and,
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(e) the Company shall not be obligated to effect, or to take any
action to effect, any registration under this Section 3.1 after it has
initiated (i) an aggregate of four (4) registrations at the request of
▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇ and any of their assignees, and (ii) four (4)
registrations at the request of ▇▇▇▇ ▇. ▇▇▇▇▇ and his assignees under this
Section 3.1 (excluding any registrations not completed for any reason not
attributable in whole or in part to any Significant Stockholder).
(f) the registration statement filed at to the request of holders of
Eligible Securities pursuant to this Section 3.1 ("Initiating Holders")
may, subject to Section 3.2 below, include other securities of the Company
which are held by Persons who, by virtue of agreements with the Company,
are entitled to include their securities in any such registration ("Other
Stockholders").
3.2 UNDERWRITING. If the holders of Eligible Securities intend to
distribute the Eligible Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to this Article 3.
If Other Stockholders request inclusion, the Initiating Holders shall offer
to include the securities of such Other Stockholders in the underwriting and may
condition such offer on their acceptance of the further applicable provisions of
this Section 3.2. The Initiating Holders whose shares are to be included in
such registration and the Company shall (together with all Other Stockholders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by the Initiating
Holders and reasonably acceptable to the Company. Notwithstanding any other
provision of this Section 3.2, if the representative advises the Initiating
Holders in writing that marketing factors require a limitation on the number of
shares to be underwritten, the securities of the Company held by Other
Stockholders shall be excluded from such registration to the extent so required
by such limitation. If, after the exclusion of such shares, further reductions
are still required, the number shall be reduced on a pro rata basis (based on
the number of shares held by such Initiating Holder), by such minimum number of
shares as is necessary to comply with such request. No Eligible Securities or
any other securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration. If
any Other Stockholder who has requested inclusion in such registration as
provided above disapproves of the terms of the underwriting, such person may
elect to withdraw therefrom by written notice to the Company, the underwriter
and the Initiating Holders. The securities so withdrawn shall also be withdrawn
from registration. If the underwriter has not limited the number of Eligible
Securities or other securities to be underwritten, the Company and officers and
directors of the Company may include its or their securities for its or their
own account in such registration if the representative so agrees and if the
number of Eligible Securities and other securities which would otherwise have
been included in such registration and underwriting will not thereby be limited.
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3.3 REGISTRATION EXPENSES. With respect to the registrations requested
pursuant to this Article 3, the Company shall pay all Registration Expenses.
All underwriting discounts and commissions attributable to the sale of the
Eligible Securities shall be borne by the Holders of the Eligible Securities so
registered pro rata on the basis of the number of their shares so registered.
ARTICLE 4. PIGGYBACK REGISTRATION.
4.1 NOTICE AND REGISTRATION. If the Company proposes to register Eligible
Securities or any other securities issued by it ("Other Securities") (whether
proposed to be offered for sale by the Company or any other Person) on a form
and in a manner which would permit registration of Eligible Securities or Other
Securities for sale to the public under the Securities Act, it will give prompt
written notice to all Holders of its intention to do so, including the
identities of any Significant Stockholder exercising registration rights
pursuant to Article 3 hereof. Upon the written request of any Holder delivered
to the Company within fifteen (15) Business Days after the giving of any such
notice (which request shall specify the number of Eligible Securities or Other
Securities intended to be disposed of by such Holder and the intended method of
disposition thereof) the Company will use reasonable efforts to effect the
registration under the Securities Act of all Eligible Securities or Other
Securities which the Company has been so requested to register by such Holder
(the "Selling Stockholder"), provided that:
(a) if, at any time after giving such written notice of its intention
to register any Eligible Securities or Other Securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall be unable to or shall determine for any
reason not to register the Eligible Securities or Other Securities the
Company may, at its election, give written notice of such determination to
such Holder and thereupon the Company shall be relieved of its obligation
to register such Eligible Securities or Other Securities (but not from its
obligation to pay Registration Expenses to the extent incurred in
connection therewith as provided in Section 4.2), without prejudice,
however, to the rights (if any) of any Significant Stockholder immediately
to request that such registration be effected as a registration under
Article 3;
(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise each of the Holders as a part of the written notice given pursuant
to Section 4.1. In such event, the right of each of the Holders to
registration pursuant to this Section 4.1(b) shall be conditioned upon such
Holders' participation in such underwriting and the inclusion of such
Holders' Eligible Securities or Other Securities in the underwriting to the
extent provided herein. The Holders whose shares are to be included in
such registration shall (together with the Company and the Other
Stockholders distributing their securities through such underwriting) enter
into an underwriting agreement in customary form with the representative of
the underwriter or underwriters selected for underwriting by the Company.
Notwithstanding any other provision of this Section 4.1(b), if the
representative determines that marketing factors require a limitation on
the number of shares to be underwritten, the representative may (subject to
the allocation priority set forth below) limit the number of such
securities to be
7
included in the registration and underwriting to not less than twenty-five
percent (25%) of the shares included therein (based on the number of
shares). The Company shall so advise all holders of securities requesting
registration, and the number of shares of securities that are entitled to
be included in the registration and underwriting shall be allocated in the
following manner: The securities of the Company held by officers, directors
and Other Stockholders of the Company (other than Eligible Securities and
other than securities held by holders who by contractual right demanded
such registration ("Demanding Holders")) shall be excluded from such
registration and underwriting to the extent required by such limitation,
and, if a limitation on the number of shares is still required, the number
of shares that may be included in the registration and underwriting by each
of the Holders and Demanding Holders shall be reduced, on a pro rata basis
(based on the number of shares held by such Holder), by such minimum number
of shares as is necessary to comply with such limitation. If any of the
Holders or any officer, director or Other Stockholder disapproves of the
terms of any such underwriting, he may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Eligible Securities
or other securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
(c) the Company shall not be required to effect any registration of
Eligible Securities or Other Securities under this Article 4 incidental to
the registration of any of its securities in connection with mergers,
acquisitions, exchange offers, subscription offers, dividend reinvestment
plans or stock options or other employee benefit plans; and
(d) the Company shall not be required to register any Eligible
Securities or Other Securities if the intended method or methods of
distribution for the Eligible Securities or Other Securities is from time
to time in multiple transactions.
No registration of Eligible Securities or Other Securities effected under this
Article 4 shall relieve the Company of its obligation (if any) to effect
registrations of Eligible Securities pursuant to Article 3.
4.2 REGISTRATION EXPENSES. The Company (as between the Company and any
Holder) shall be responsible for the payment of all Registration Expenses in
connection with any registration pursuant to this Article 4.
ARTICLE 5. REGISTRATION PROCEDURES.
5.1 REGISTRATION AND QUALIFICATION. If and whenever the Company is
required to use reasonable efforts to effect the registration of any Eligible
Securities or Other Securities under the Securities Act as provided in Articles
3 and 4, the Company will as promptly as is practicable:
(a) prepare, file and use reasonable efforts to cause to become
effective a registration statement under the Securities Act regarding the
Eligible Securities or Other
8
Securities to be offered, provided that such reasonable efforts obligation
shall not require the Company to yield to an SEC accounting or other
comment which it is discussing, resisting or otherwise addressing in good
faith and which the Board of Directors of the Company determines that such
discussing, resisting or addressing is materially in the best interests of
the Company;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective and to
comply with the provisions of the Securities Act with respect to the
disposition of all Eligible Securities or other Securities until the
earlier of such time as all of such Eligible Securities or Other Securities
have been disposed of in accordance with the intended methods of
disposition by the Holders set forth in such registration statement or the
expiration of four (4) months after such Registration Statement becomes
effective;
(c) furnish to all Holders and to any underwriter (which term for
purposes of this Agreement shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the Securities Act and
any placement agent or sales agent) of such Eligible Securities or Other
Securities one executed copy each and such number of conformed copies of
such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with the
requirements of the Securities Act, such documents incorporated by
reference in such registration statement or prospectus, and such other
documents as any Holder or such underwriter may reasonably request;
(d) use reasonable efforts to register or qualify all Eligible
Securities or Other Securities covered by such registration statement under
securities laws of such jurisdictions as any Holder or any underwriter of
such Eligible Securities shall reasonably request, and do any and all other
acts and things which may be necessary or advisable to enable any Holder or
any underwriter to consummate the disposition in such jurisdictions of the
Eligible Securities or Other Securities covered by such registration
statement, except the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to subject itself to
taxation in any such jurisdiction, or to consent to general service of
process in any such jurisdiction;
(e) promptly notify the selling Holders of Eligible Securities or
Other Securities and the managing underwriter or underwriters, if any,
thereof and confirm such advice in writing, (i) when such registration
statement or the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with respect to
such registration statement or any post-effective amendment, when the same
has become effective, (ii) of any comments by the SEC and by the securities
commissioner or regulator of any state with respect thereto or any request
by the SEC for amendments or supplements to such registration statement or
prospectus or for additional information, (iii)
9
of the issuance by the SEC of any stop order suspending the effectiveness
of such registration statement or the initiation or threatening of any
proceedings for that purpose, (iv) if at any time the representations and
warranties of the Company contemplated by Section 5.1(h) or Section 5.2(b)
hereof cease to be true and correct in all material respects, (v) of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Eligible Securities or Other Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, or (vi) at any time when a prospectus is required to be
delivered under the Securities Act, that such registration statement,
prospectus, prospectus amendment or supplement or post-effective amendment,
or any document incorporated by reference in any of the foregoing, contains
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(f) use its reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any post-
effective amendment thereto at the earliest practicable date, provided that
such reasonable efforts obligation shall not require the Company to yield
to a material SEC accounting or other comment which it is discussing,
resisting or otherwise addressing in good faith and which the Board of
Directors of the Company determines that such discussing, resisting or
addressing is materially in the best interests of the Company;
(g) use its reasonable efforts to obtain the consent or approval of
each governmental agency or authority, whether federal, state or local,
which may be required to effect such registration or the offering or sale
in connection therewith or to enable the Holders to offer, or to consummate
the disposition of, the Eligible Securities or Other Securities, provided
that such reasonable efforts obligation shall not require the Company to
yield to a material accounting or other comment issued by such governmental
agency or authority which it is discussing, resisting or otherwise
addressing in good faith and which the Board of Directors of the Company
determines that such discussing, resisting or addressing is materially in
the best interests of the Company;
(h) whether or not an agreement of the type referred to in Section 5.2
hereof is entered into and whether or not any portion of the offering
contemplated by such registration statement is an underwritten offering or
is made through a placement or sales agent or any other entity, (i) make
such representations and warranties to the Holders and the underwriters, if
any, thereof in form, substance and scope as are customarily made in
connection with an offering of common stock or other equity securities
pursuant to any appropriate agreement and/or to a registration statement
filed on the form applicable to such registration; (ii) obtain opinions of
counsel to the Company in customary form and covering such matters, of the
type customarily covered by such opinions, as the underwriters, if any, and
as the Holders may reasonably request; (iii) obtain a "cold comfort" letter
or letters from the independent certified public accountants of the Company
addressed to the Holders and the underwriters, if any, thereof, dated (A)
the effective date of such registration statement and (B) the date of the
closing under the underwriting agreement relating thereto, such letter
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or letters to be in customary form and covering such matters of the type
customarily covered, from time to time, by letters of such type and such
other financial matters as the managing underwriters, if any, and as the
Holders may reasonably request; (iv) deliver such documents and
certificates, including officers' certificates, as may be reasonably
requested by the Holders and the placement or sales agent, if any, therefor
and the managing underwriters, if any, thereof to evidence the accuracy of
the representations and warranties made pursuant to clause (i) above and
the compliance with or satisfaction of any agreements or conditions
contained in the underwriting agreement or other agreement entered into by
the Company; and (v) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided in Article
7 hereof; and,
(i) use its reasonable best efforts to list prior to the effective
date of such registration statement, subject to notice of issuance, the
Eligible Securities or Other Securities covered by such registration
statement on any securities exchange on which securities of the same class
are then listed or, if such class is not then so listed, to have the
Eligible Securities or Other Securities accepted for quotation for trading
on the Nasdaq National Market System (or a comparable interdealer quotation
system then in effect).
The Company may require any Holder to furnish the Company such information
regarding such Holder and the distribution of such securities as the Company may
from time to time reasonably request in writing and as shall be required by law
or by the SEC in connection with any registration.
5.2 UNDERWRITING. If requested by the underwriters for any underwritten
offering of Eligible Securities or Other Securities pursuant to a registration
requested hereunder, the Company will enter into an underwriting agreement with
such underwriters for such offering. Such agreement shall contain such
representations and warranties by the Company and such other terms and
provisions as are then customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation, indemnities
and contribution and the provision of opinions of counsel and accountants'
letters to the effect and to the extent provided in Section 5.1(h). The Holders
on whose behalf Eligible Securities or Other Securities are to be distributed by
such underwriters shall be parties to any such underwriting agreement. Such
Agreement shall contain such representations and warranties by the Holders and
such other terms and provisions as are then customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the extent
provided in Article 7. 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
Eligible Securities or Other Securities.
5.3 BLACKOUT PERIODS.
(a) For purposes of this Section 5.3, the following terms shall have
the following meanings:
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(i) "Transaction Blackout" means an occurrence where the Board of
Directors of the Company, in its reasonable judgment and in good
faith, resolves that such Holder's or Holders' sale of Eligible
Securities pursuant to the registration statement would materially
interfere with any significant acquisition, corporate reorganization
or other similar transaction involving the Company.
(ii) "Information Blackout" means an occurrence where (i) the
Company determines in good faith, based upon the advice of outside
counsel to the Company, that such Holder's or Holders' sale of
Eligible Securities pursuant to the registration statement would
require disclosure of material information and the Company's Board of
Directors, in its reasonable judgment and in good faith, resolves that
the Company has a bona fide business purpose for preserving such
information confidential or (ii) the Company determines, after taking
into account the advice of outside counsel and/or independent
accountants, that the Company is unable to comply with SEC
requirements.
(b) At any time when a registration statement effected pursuant to
Article 3 hereunder relating to Eligible Securities is effective, upon
written notice from the Company to all Holders of either a Transaction
Blackout or Information Blackout, then such Holder or Holders shall suspend
sales of Eligible Securities pursuant to such registration statement until
the earlier of:
(i) (A) in the case of a Transaction Blackout, the earliest of
(1) one month after the completion of such acquisition, corporate
reorganization or other similar transaction, (2) promptly after
abandonment of such acquisition, corporate reorganization or other
similar transaction and (3) three (3) months after the date of the
Company's written notice of such Transaction Blackout, or (B) in the
case of an Information Blackout, the earlier of (1) the date upon
which such material information is disclosed to the public or ceases
to be material and (2) ninety (90) days after the Company makes such
good faith determination, and
(ii) such time as the Company notifies such Holder or Holders
that sales pursuant to such registration statement may be resumed.
(c) Notwithstanding anything to the contrary herein, the Company may
not impose a Transaction Blackout within thirty (30) days after the initial
effectiveness of any registration statement of equity securities prepared
pursuant to a request hereunder.
5.4 WITHDRAWALS. Any Holder having notified or directed the Company to
include any or all of such Holder's Eligible Securities or Other Securities in a
registration statement pursuant to Article 3 or 4 hereof shall have the right to
withdraw such notice or direction with respect to any or all of the Eligible
Securities or Other Securities designated for registration thereby by giving
written notice to such effect to the Company at least two business days prior to
the anticipated effective date of such registration statement. Such withdrawing
Holder is hereinafter referred to as
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a "Withdrawing Holder." In the event of any such withdrawal, the Company shall
amend such registration statement and take such other actions as may be
necessary so that such Eligible Securities or Other Securities are not included
in the applicable registration and not sold pursuant thereto, and such Eligible
Securities or Other Securities shall continue to be Eligible Securities or Other
Securities accordance herewith. The Withdrawing Holder shall be responsible for
assuming that Withdrawing Holder's pro rata share of the Company's expenses in
connection with such registration. No withdrawal shall affect the obligations of
the Company with respect to Eligible Securities or Other Securities not
withdrawn, provided, however, that in the case of a registration pursuant to
Article 3 hereof, if such withdrawal shall reduce the total number of the
Eligible Securities to be registered so that the requirements set forth in
Section 3.1(a) are not satisfied, then the Company shall, prior to the filing of
such registration statement or, if such registration statement (including any
amendment thereto) has theretofore been filed, prior to the filing of any
further amendment thereto, give each Holder of Eligible Securities to be
registered notice of such fact and, within ten (10) business days following the
giving of such notice, either the Company or the Holders of a majority of such
Eligible Securities may, by written notice to each Holder of such Eligible
Securities or to the Company, as the case may be, elect that such registration
statement not be filed or, if it has theretofore been filed, that it be
withdrawn.
ARTICLE 6. PREPARATION; REASONABLE INVESTIGATION.
In connection with the preparation and filing of each registration
statement registering Eligible Securities or Other Securities under the
Securities Act, the Company will give all Holders and the underwriters, if any,
and their respective counsel and accountants, such reasonable and customary
access to its books and records and such opportunities to discuss the business
of the Company with its directors, officers, employees, counsel and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of any Holder and such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
ARTICLE 7. INDEMNIFICATION AND CONTRIBUTION.
7.1 INDEMNIFICATION AND CONTRIBUTION BY THE COMPANY. In the event of any
registration of any Eligible Securities or Other Securities hereunder, the
Company will enter into customary indemnification arrangements to indemnify and
hold harmless all selling Holders, their directors and officers (if any), each
Person who participates as an underwriter in the offering or sale of such
securities, each officer and director of each underwriter, and each Person, if
any, who controls such seller or any such underwriter within the meaning of the
Securities Act against any losses, claims, damages, liabilities and expenses,
joint or several, to which such Person may be subject under the Securities Act
or otherwise insofar as such losses, claims, damages, liabilities or expenses
(or actions or proceedings in respect thereof) arise out of or are based upon
((a) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus included therein, or any amendment or supplement thereto, or any
document incorporated by reference therein, or (b) any omission or alleged
omission to state therein a material
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fact required to be stated therein or necessary to make the statements therein
not misleading, and the Company will periodically reimburse each such Person for
any legal or any other expenses reasonably incurred by such Person in connection
with investigating or defending any such loss, claim, liability, action or
proceeding; provided that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, any such preliminary prospectus or final
prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any selling Holder or such
underwriter for use in the preparation thereof. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
any Holder or any such Person and shall survive the transfer of such securities
by such selling Holder. The Company also shall agree to provide for contribution
as shall be reasonably requested by such selling Holder or any underwriters in
circumstances where such indemnity is held unenforceable.
7.2 INDEMNIFICATION AND CONTRIBUTION BY THE SELLING HOLDERS. All selling
Holders, by virtue of exercising their registration rights hereunder, agree and
undertake to enter into customary indemnification arrangements to indemnify and
hold harmless (in the same manner and to the same extent as set forth in Section
7.1) the Company, each director of the Company, each officer of the Company who
shall sign such registration statement, each Person who participates as an
underwriter in the offering or sale of such securities, each officer and
director of each underwriter, each Person, if any, who controls the Company or
any such underwriter within the meaning of the Securities Act, with respect to
any statement in or omission from such registration statement, any preliminary
prospectus or final prospectus included therein, or any amendment or supplement
thereto, if such statement or omission was made in reliance upon and in
conformity with written information concerning such Holder furnished by it to
the Company. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of the registered
securities by any Holder. Holders also shall agree to provide for contribution
as shall be reasonably requested by the Company or any underwriters where such
indemnity is held unenforceable. The indemnification and contribution
obligations of any Holder shall in every case be limited to the aggregate
proceeds received (net of any underwriting fees and expenses and other
transaction costs) by such Holder in such registration.
ARTICLE 8. TRANSFER OF REGISTRATION RIGHTS.
Any Holder may transfer the registration rights granted hereunder to any
other Person (who shall be bound by all obligations of this Agreement).
ARTICLE 9. UNDERWRITTEN OFFERINGS.
If any of the Eligible Securities or Other Securities covered by any
registration statement filed pursuant to Article 3 hereof, or pursuant to
Article 4 hereof in connection with a secondary offering, are to be sold
pursuant to an underwritten offering, the managing underwriter or underwriters
thereof
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shall, in the case of any registration statement filed pursuant to Article 3
hereof, be designated after consultation with the Company by the Holder or
Holders demanding registration, provided that such designated managing
underwriter or underwriters is or are reasonably acceptable to the Company and,
in the case of any registration statement pursuant to Article 4 hereof, by the
Person originating the registration.
ARTICLE 10. RULE 144.
The Company covenants to and with each Holder of Eligible Securities or
Other Securities that to the extent it shall be required to do so under the
Exchange Act, the Company shall use its best efforts to timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including, but not limited to, the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the SEC
under the Securities Act) and the rules and regulations adopted by the SEC
thereunder, and shall use its best efforts to take such further action as any
Holder may reasonably request, all to the extent required from time to time to
enable the Holders to sell Eligible Securities or Other Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the SEC.
Upon the request of any Holder of Eligible Securities or Other Securities, the
Company shall deliver to such Holder a written statement as to whether it has
complied with such requirements at any time from and after ninety (90) days
following the effective date of the first registration statement filed by the
Company for an offering of securities to the general public.
ARTICLE 11. MISCELLANEOUS.
11.1 SEVERABILITY. If any clause, provision or section of this Agreement
shall be invalid, illegal or unenforceable, the invalidity, illegality or
unenforceability of such clause, provision or section shall not affect the
enforceability or validity of any of the remaining clauses, provisions or
sections hereof to the extent permitted by applicable law.
11.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEBRASKA WITHOUT GIVING
EFFECT TO CONFLICTS OF LAW PRINCIPLES.
11.3 CONSENT TO JURISDICTION; SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
(a) THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED IN OMAHA,
NEBRASKA, OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH COURT.
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(b) THE PARTIES HEREBY IRREVOCABLY WAIVE ANY RIGHTS THEY MAY HAVE IN
ANY COURT, STATE OR FEDERAL, TO A TRIAL BY JURY IN ANY CASE OF ANY TYPE
THAT RELATES TO OR ARISES OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREIN.
11.4 SPECIFIC PERFORMANCE. The Company acknowledges that it would be
impossible to determine the amount of damages that would result from any breach
by it of any of the provisions of this Agreement and that the remedy at law for
any breach, or threatened breach, of any of such provisions would likely be
inadequate and, accordingly, agrees that each Holder shall, in addition to any
other rights or remedies which it may have, be entitled to seek such equitable
and injunctive relief as may be available from any court of competent
jurisdiction to compel specific performance of, or restrain the Company from
violating any such provisions. In connection with any action or proceeding for
injunctive relief, the Company hereby waives the claim or defense that a remedy
at law alone is adequate and agrees, to the maximum extent permitted by law, to
have each provision of this Agreement specifically enforced against it, without
the necessity of posting bond or other security against it, and consents to the
entry of injunctive relief against it enjoining or restraining any breach or
threatened breach of this Agreement.
11.5 MODIFICATION AND AMENDMENT. This Agreement may not be changed,
modified, discharged or amended, except by an instrument signed by all of the
parties hereto.
11.6 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
11.7 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding among the parties and supersedes any prior understandings
and/or written or oral agreements among them respecting the subject matter
herein.
11.8 NOTICES. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery service
or by certified mail, return receipt requested, postage prepaid. Notices shall
be deemed given when actually received, which shall be deemed to be not later
than the next Business Day if sent by overnight courier or after five (5)
Business Days if sent by mail.
11.9 SUCCESSORS TO COMPANY, ETC. This Agreement shall be binding upon,
and inure to the benefit of, the Company's successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
WEST TELESERVICES CORPORATION
By:___________________________
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STOCKHOLDERS
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