EXHIBIT 99.4
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF APRIL 14, 2003
AMONG
PERSONNEL GROUP OF AMERICA, INC.
AND
THE PARTIES NAMED HEREIN
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TABLE OF CONTENTS
PAGE
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Section 1. Definitions........................................................1
Section 2. Demand Registrations...............................................3
(a) Right to Demand....................................................3
(b) Number of Demand Registrations.....................................4
(c) Registration Statement.............................................4
(d) Amendments; Supplements............................................4
(e) Effectiveness......................................................5
(f) Holders Withdrawal.................................................5
(g) Preemption of Demand Registration..................................5
(h) Priority on Demand Registrations...................................5
Section 3. Piggyback Registrations............................................5
(a) Right to Piggyback Registrations...................................5
(b) Priority on Piggyback Registrations................................6
Section 4. Shelf Registration.................................................6
(a) Right to Shelf Registration........................................6
(b) Number of Shelf Registrations......................................6
Section 5. Obligations of the Company.........................................7
(a) Delay Period.......................................................7
(b) Shelf Registrations After Other Registrations......................7
(c) Registration Procedures............................................7
Section 6. Registration Expenses.............................................11
(a) Expenses Payable by the Company...................................11
(b) Expenses Payable by the Holders...................................12
Section 7. Indemnification...................................................12
(a) Indemnification by the Company....................................12
(b) Indemnification by the Holders....................................13
(c) Conduct of Indemnification Proceedings............................13
(d) Survival..........................................................14
(e) Right to Contribution.............................................14
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Section 8. Rules 144 and 144A................................................15
Section 9. Underwritten Registrations........................................15
Section 10. Covenants of Holders..............................................15
Section 11. Miscellaneous.....................................................16
(a) No Inconsistent Agreements........................................16
(b) Remedies..........................................................16
(c) Amendments and Waivers............................................16
(d) Successors and Assigns............................................16
(e) Termination of Registration Rights................................16
(f) Severability......................................................17
(g) Counterparts......................................................17
(h) Descriptive Headings: Interpretation.............................17
(i) Notices...........................................................17
(j) GOVERNING LAW; SUBMISSION TO JURISDICTION.........................17
(k) Entire Agreement..................................................18
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of April 14, 2003, by and among Personnel Group of America,
Inc. (to be renamed "Venturi Partners, Inc."), a company incorporated in
Delaware, the United States of America (the "Company"), and the parties
identified as "Investors" on the signature pages hereto (each an "Investor" and
together the "Investors").
WHEREAS, pursuant to the terms of the Restructuring Agreement (the
"Restructuring Agreement"), dated March 14, 2003, among the Company and certain
Investors, and a Participation Agreement, dated March 14, 2003, between the
Company and an Investor, the Company will issue shares of its Common Stock (as
defined below) and preferred stock convertible into Common Stock to certain of
the Investors;
WHEREAS, pursuant to the terms of the Restructure Agreement (the
"Credit Restructure Agreement"), dated April 11, 2003, among the Company and
certain Investors, the Company will issue to such Investors Warrants (as
defined below) to purchase Common Stock; and
WHEREAS, in the Restructuring Agreement and in the Credit Restructure
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound hereby, agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the meanings
set forth below:
"Charter" means the Restated Certificate of Incorporation of the
Company, as amended from time to time.
"Commission" means the United States Securities and Exchange
Commission or any other United States federal agency at the time administering
the Securities Act.
"Common Stock" means the Company's common stock, par value $0.01 per
share, or any other shares of capital stock or other securities of the Company
into which such shares of Common Stock shall be reclassified or changed,
including, by reason of a merger, consolidation, reorganization or
recapitalization. If the Common Stock has been so reclassified or changed, or
if the Company pays a dividend or makes a distribution on the Common Stock in
shares of capital stock, or subdivides (or combines) its outstanding shares of
Common Stock into a greater (or smaller) number of shares of Common Stock, a
share of Common Stock shall be deemed to be such number of shares of stock and
amount of other securities to which a holder of a share of Common Stock
outstanding immediately prior to such change, reclassification, exchange,
dividend, distribution, subdivision or combination would be entitled.
"Delay Period" has the meaning set forth in Section 5(a) of this
Agreement.
"Demand Notice" has the meaning set forth in Section 2(a) of this
Agreement.
"Demand Registration" has the meaning set forth in Section 2(a) of
this Agreement.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Holder" means a person who owns Registrable Securities and is either
(i) an Investor or a Permitted Transferee of an Investor that has agreed to be
bound by the terms of this Agreement as if such Person were an Investor, (ii)
upon the death of any Holder, the executor of the estate of such Holder or such
Holder's heirs, devisees, legatees or assigns or (iii) upon the disability of
any Holder, any guardian or conservator of such Holder.
"Interruption Period" has the meaning set forth in the last paragraph
in Section 5(c).
"Losses" has the meaning set forth in Section 7(a) of this Agreement.
"Misstatement/Omission" has the meaning set forth in Section 7(a) of
this Agreement.
"Permitted Transferee" means any Person to whom the rights under this
Agreement have been assigned in accordance with the provisions of Section 11(d)
hereof.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Piggyback Registration" has the meaning set forth in Section 3(a) of
this Agreement.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such prospectus.
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"Registrable Securities" means (i) the shares of Common Stock issued
to the Investors pursuant to the Restructuring Agreement, (ii) any shares of
Common Stock issued or issuable upon the conversion of the Series B Preferred
Stock and (iii) any shares of Common Stock issued or issuable upon the exercise
of any of the Warrants. If as a result of any reclassification, stock dividends
or stock splits or in connection with a combination of shares,
recapitalization, merger, consolidation, or other reorganization or other
transaction or event, any capital stock, evidence of indebtedness, warrants,
options, rights or other securities (collectively "Other Securities") are
issued or transferred to a Holder in respect of Registrable Securities held by
the Holder, references herein to Registrable Securities shall be deemed to
include such Other Securities. As to any particular Registrable Securities,
such securities will cease to be Registrable Securities when (i) they have been
distributed to the public pursuant to an offering registered under the
Securities Act, (ii) they have been distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act, (iii) they are
eligible for immediate sale pursuant to Rule 144(k) under the Securities Act or
(iv) they have been sold to any Person to whom the rights under this Agreement
are not assigned in accordance with this Agreement.
"Registration Statement" means any registration statement under the
Securities Act of the Company that covers any of the Registrable Securities,
including the related Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits, and all materials incorporated by reference or deemed
to be incorporated by reference in such registration statement or Prospectus.
"Required Holders" means Holders of at least a majority of the
aggregate amount of all Registrable Securities outstanding.
"S-3 Registration" has the meaning set forth in Section 4(a) of this
Agreement.
"Securities Act" means the United States Securities Act of 1933, as
amended, or any similar United States federal statute, and the rules and
regulations of the Commission promulgated thereunder.
"Warrants" means the common stock purchase warrants issued by the
Company pursuant to the Credit Restructure Agreement.
Section 2. Demand Registrations.
(a) Right to Demand. The Holders shall have the right, by
written notice (the "Demand Notice") given to the Company, to request the
Company to register under and in accordance with the provisions of the
Securities Act all or part of the Registrable Securities designated by such
Holders (a "Demand Registration"). Upon receipt of any such Demand Notice from
any Holder, the Company will promptly notify all other Holders of the receipt
of such Demand Notice and allow them the opportunity to include Registrable
Securities held by them in the proposed registration by submitting their own
Demand Notice. Notwithstanding anything herein to the contrary, the Company
shall not be required to honor a request for a Demand Registration if the
Company has not received Demand Notices from the Required Holders. The Company
shall not be required to register any Registrable Securities under this Section
2 unless the anticipated aggregate offering price to the public for any such
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offering of the Registrable Securities included in such Demand Notices is
expected to be at least $20 million.
(b) Number of Demand Registrations. The Holders shall be
entitled to have two (2) Demand Registrations effected. A Demand Registration
shall not be deemed to be effected (i) if a Registration Statement with respect
thereto shall not have become effective under the Securities Act and remained
effective for at least 180 days or until the completion of the distribution of
the Registrable Securities thereunder, whichever is earlier (including, without
limitation, because of withdrawal of such Registration Statement by the Holders
pursuant to Section 2(f) hereunder, (ii) if, after it has become effective,
such registration is interfered with for any reason by any stop order,
injunction or other order or requirement of the Commission or any governmental
authority, or as a result of the initiation of any proceeding for such stop
order by the Commission through no fault of the Holders and the result of such
interference is to prevent the Holders from disposing of such Registrable
Securities proposed to be sold in accordance with the intended methods of
disposition, (iii) the Company exercises its rights with respect to a Delay
Period under Section 5(a) and the result is a delay in the proposed
distribution of any Registrable Securities and the Holders determine not to
sell such Registrable Securities pursuant to such registration as a result of
such delay, or (iv) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with any
underwritten offering shall not be satisfied or waived with the consent of the
Required Holders, other than as a result of any breach by the Holders or any
underwriter of its obligations thereunder or hereunder.
(c) Registration Statement. Subject to paragraph (a) above,
as soon as practicable, but in any event within 30 days of the date on which
the Company first receives one or more Demand Notices from the Required Holders
pursuant to Section 2(a) hereof, the Company shall file with the Commission a
Registration Statement on the appropriate form for the registration and sale of
the total number of Registrable Securities specified in such Demand Notice in
accordance with the intended method or methods of distribution specified by the
Holders in such Demand Notice. The Company shall use reasonable best efforts to
cause such Registration Statement to be declared effective by the Commission as
soon as reasonably practicable. Notwithstanding the foregoing, the Company
shall not be obligated to file a Registration Statement pursuant to this
Section 2(c) if (i) the offering requested to be registered is a delayed or
continuous offering under Rule 415 under the Securities Act is available for
such offering by the Holders, in which case the registration shall be made by
the Company pursuant to Section 4 hereof; or (ii) if the Company has, within
the six month period preceding the date of such request, already effected a
registration under the Securities Act, other than a registration from which
Registrable Securities of Holders have been excluded (with respect to all or
any portion of the Registrable Securities requested by included in such
registration) pursuant to the provisions of Section 3 hereof.
(d) Amendments; Supplements. Subject to Section 5(a), upon
the occurrence of any event that would cause the Registration Statement (A) to
contain a material misstatement or omission or (B) to be not effective and
usable for resale of Registrable Securities during the period that such
Registration Statement is required to be effective and usable, the Company
shall file an amendment to the Registration Statement as soon as reasonably
practicable, in the case of clause (A), correcting any such misstatement or
omission and, in the
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case of either clause (A) or (B), use reasonable best efforts to cause such
amendment to be declared effective and such Registration Statement to become
usable as soon as reasonably practicable thereafter.
(e) Effectiveness. The Company agrees to use reasonable
best efforts to keep any Registration Statement filed pursuant to this Section
2 continuously effective and usable for the sale of Registrable Securities
until the earlier of (i) 180 days from the date on which the Commission
declares such Registration Statement effective, or (ii) the date on which all
the Registrable Securities covered by such Registration Statement have been
sold pursuant to such Registration Statement.
(f) Holders Withdrawal. Holders of a majority in number of
the Registrable Securities to be included in a Demand Registration pursuant to
this Section 2 may, at any time prior to the effective date of the Registration
Statement in respect thereof, revoke such request by providing a written notice
to the Company to such effect.
(g) Preemption of Demand Registration. Notwithstanding
anything to the contrary contained herein, after receiving a written request
for a Demand Registration, the Company may elect to effect an underwritten
primary registration in lieu of the Demand Registration if the Company's Board
of Directors believes that such primary registration would be in the best
interests of the Company. If the Company so elects to effect a primary
registration, the Company shall give prompt written notice (which shall be
given not later than 20 days after the date of the Demand Notice) to all
holders of the Registrable Securities of its intention to effect such a
registration and shall afford the holders of the Registrable Securities the
rights contained in Section 3 with respect to Piggyback Registrations. In the
event that the Company so elects to effect a primary registration after
receiving a request for a Demand Registration, the Company shall use reasonable
best efforts to have the Registration Statement declared effective by the
Commission as soon as reasonably practicable. In addition, the request for a
Demand Registration shall be deemed to have been withdrawn and such primary
registration shall not be deemed to be a Demand Registration.
(h) Priority on Demand Registrations. If a Demand
Registration is an underwritten offering and includes securities for sale by
the Company, and the managing underwriter (such underwriter to be chosen by the
Holders of a majority of the Registrable Securities included in such
registration, subject to the Company's reasonable approval) advises the
Company, in writing, that, in its good faith judgment, the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering without materially and adversely affecting the
marketability of the offering, then the Company will include in any such
registration the maximum number of shares which the managing underwriter
advises the Company can be sold in such offering allocated as follows: (i)
first, the Registrable Securities requested to be included in such registration
by the Holders on a pro rata basis, based on the number of Registrable
Securities requested to be included by such Holders and (ii) second, to the
extent that any other securities may be included without exceeding the
limitations recommended by the underwriter as aforesaid, the securities that
the Company proposes to sell.
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Section 3. Piggyback Registrations.
(a) Right to Piggyback Registrations. Whenever the Company
proposes to register any of its equity securities under the Securities Act
(other than a registration on Form S-4 relating solely to a transaction
described in Rule 145 of the Securities Act or a registration on Form S-8 or
any successor forms thereto), whether or not for sale for its own account, the
Company will give prompt written notice of such proposed filing to all Holders
at least 30 days before the anticipated filing date. Such notice shall offer
such Holders the opportunity to register such amount of Registrable Securities
as they shall request (a "Piggyback Registration"). Subject to Sections 3(b)
and 3(c) hereof, the Company shall include in each such Piggyback Registration
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 20 days after such notice has
been given by the Holders to the Company. If the Registration Statement
relating to the Piggyback Registration is to cover an underwritten offering,
such Registrable Securities shall be included in the underwriting on the same
terms and conditions as the securities otherwise being sold through the
underwriters. Each Holder shall be permitted to withdraw all or part of the
Registrable Securities from a Piggyback Registration at any time prior to the
effective time of such Piggyback Registration.
(b) Priority on Piggyback Registrations. If a Piggyback
Registration is an underwritten offering on behalf of the Company, by or
through one or more underwriters of recognized standing and the managing
underwriters advise the Company in writing (a copy of which writing shall be
provided by the Company to the Holders) that in their good faith judgment the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without materially and adversely
affecting the marketability of the offering, then the Company will include in
any such registration the maximum number of shares which such managing
underwriters advise the Company can be sold in such offering allocated as
follows: (i) first, the securities the Company proposes to sell, and (ii)
second, to the extent that any other securities may be included without
exceeding the limitations recommended by the underwriter as aforesaid, the
Registrable Securities requested to be included in such registration by the
Holders on a pro rata basis, based on the amount of Registrable Securities
requested to be included therein (or in such other proportion mutually agreed
among such Holders).
Section 4. Shelf Registration.
(a) Right to Shelf Registration. The Company shall use its
reasonable best efforts to file and cause to be declared effective as promptly
as practicable following the Agreement a registration ("Shelf Registration")
for delayed or continuous offerings of Registrable Securities in the market
transactions on any appropriate form pursuant to Rule 415 under the Securities
Act (or similar rule that may be adopted by the Commission), which form shall
be available for the sale of the Registrable Securities in accordance with the
intended methods of distribution thereof. The Company agrees to use its
reasonable best efforts to keep such Shelf Registration continuously effective
and usable for resale of Registrable Securities until the second anniversary of
the date of this Agreement or such shorter period which will terminate at such
time as the Holders have sold all the Registrable Securities covered by such
Registration Statement. At any time thereafter, Holders holding in the
aggregate at least 5% of
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the outstanding shares of Common Stock may request that the Company file and
cause to be declared effective a Shelf Registration.
(b) Number of Shelf Registrations. The Holders shall be
entitled to an unlimited number of Shelf Registrations and no Shelf
Registration shall be counted as a Demand Registration for purposes of Section
2(a) hereof.
Section 5. Obligations of the Company.
(a) Delay Period. Notwithstanding the foregoing, the
Company shall have the right to delay the filing of any Registration Statement
otherwise required to be prepared and filed by the Company pursuant Sections 2,
3 or 4, or to suspend the use of any Registration Statement, for a period not
in excess of 60 consecutive calendar days (a "Delay Period") if (i) the Board
of Directors of the Company determines that filing or maintaining the
effectiveness of such Registration Statement would have a material adverse
effect on the Company or the holders of its capital stock in relation to any
material acquisition or disposition, financing or other corporate transaction
and the Board of Directors of the Company has determined in good faith that
disclosure thereof would not be in the best interests of the Company and its
holders of capital stock at the time or (ii) the Board of Directors of the
Company has determined in good faith that the filing of a Registration
Statement or maintaining the effectiveness of a current Registration Statement
would require disclosure of material information that the Company has a valid
business purpose for retaining as confidential at such time. The Company shall
be entitled to exercise a Delay Period more than one time in any calendar year
so long as such exercise does not prevent the Holders from being entitled to at
least 240 days of effective registration rights per calendar year and that no
Delay Period may commence if it is less than 30 days from the end of the
previous Delay Period.
(b) Shelf Registrations After Other Registrations. Other
than the initial Shelf Registration discussed in Section 4(a) above, the
Company shall not be obligated to effect any Shelf Registration within 120 days
after the effective date of a previous Registration Statement filed by the
Company (except for registrations on Form S-4 or Form S-8, or other forms
prescribed under the Securities Act for the same purpose or for an exchange
offer).
(c) Registration Procedures. Whenever the Company is
required to register Registrable Securities pursuant to Sections 2, 3 or 4
hereof, the Company will use reasonable best efforts to effect the registration
to permit the sale of such Registrable Securities in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Company will as expeditiously as possible:
(1) prepare and file with the Commission a
Registration Statement with respect to such Registrable Securities as
prescribed by Sections 2, 3 or 4 on a form available for the sale of
the Registrable Securities by the holders thereof in accordance with
the intended method or methods of distribution thereof and use
reasonable best efforts to cause each such Registration Statement to
become and remain effective within the time periods and otherwise as
provided herein;
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(2) prepare and file with the Commission such
amendments, (including post-effective amendments) to the Registration
Statement and such supplements to the Prospectus as may be necessary
to keep such Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such Registration Statement until such time
as all of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set
forth in such Registration Statement;
(3) furnish to each selling Holder of Registrable
Securities covered by a Registration Statement and to each
underwriter, if any, such number of copies of such Registration
Statement, each amendment and post-effective amendment thereto, the
Prospectus included in such Registration Statement (including each
preliminary prospectus and any supplement to such Prospectus and any
other prospectus filed under Rule 424 of the Securities Act), in each
case including all exhibits, and such other documents as such Holder
may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Holder or to be disposed of by
such underwriter (the Company hereby consenting to the use in
accordance with all applicable law of each such Registration Statement
(or amendment or post-effective amendment thereto) and each such
Prospectus (or preliminary prospectus or supplement thereto) by each
such Holder and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such
Registration Statement or Prospectus);
(4) use reasonable best efforts to register or
qualify and, if applicable, to cooperate with the selling Holders, the
underwriters, if any, and their respective counsel in connection with
the registration or qualification (or exemption from such registration
or qualification) of, the Registrable Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any
selling Holder or managing underwriters (if any) shall reasonably
request, to keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective and to do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Securities covered by the applicable Registration
Statement; provided, that, the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this paragraph or (ii)
consent to general service of process or taxation in any such
jurisdiction where it is not so subject;
(5) cause all such Registrable Securities to be
listed or quoted (as the case may be) on each national securities
exchange or other securities market on which securities of the same
class as the Registrable Securities are then listed or quoted;
(6) provide a transfer agent and registrar for all
such Registrable Securities and a CUSIP number for all such
Registrable Securities not later than the effective date of such
Registration Statement;
(7) comply with all applicable rules and
regulations of the Commission, and make available to its security
holders an earnings statement satisfying
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the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year)
(or in each case within such extended period of time as may be
permitted by the Commission for filing the applicable report with the
Commission) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in an underwritten
offering or (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement;
(8) use reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of a Registration
Statement or suspending the qualification (or exemption from
qualification) of any of the Registrable Securities included therein
for sale in any jurisdiction, and, in the event of the issuance of any
stop order suspending the effectiveness of a Registration Statement,
or of any order suspending the qualification of any Registrable
Securities included in such Registration Statement for sale in any
jurisdiction, the Company will use reasonable best efforts promptly to
obtain the withdrawal of such order at the earliest possible moment;
(9) obtain "cold comfort" letters and updates
thereof (which letters and updates (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any,
and the Holders) from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, if any, and each
selling Holder of Registrable Securities, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings and
such other matters as the underwriters, if any, or the Holders of a
majority of the Registrable Securities being included in the
registration may reasonably request;
(10) obtain opinions of independent counsel to the
Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the Holders of a majority of the Registrable
Securities being included in the registration), addressed to each
selling Holder and each of the underwriters, if any, covering the
matters customarily covered in opinions of issuer's counsel requested
in underwritten offerings, such as the effectiveness of the
Registration Statement and such other matters as may be requested by
such counsel and underwriters, if any;
(11) promptly notify the selling Holders and the
managing underwriters, if any, and confirm such notice in writing,
when a Prospectus or any supplement or post-effective
amendment to such Prospectus has been filed, and, with
respect to a Registration Statement or
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any post-effective amendment thereto, when the same has
become effective,
of any request by the Commission or any other federal or
state governmental authority for amendments or supplements to
a Registration Statement or related Prospectus or for
additional information,
of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of any
Prospectus or the initiation of any proceedings by any Person
for that purpose,
of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the
Registrable Securities for offer or sale under the securities
or blue sky laws of any jurisdiction, or the contemplation,
initiation or threatening, of any proceeding for such
purpose, and
of the happening of any event or the existence of any facts
that make any statement made in such Registration Statement
or Prospectus untrue in any material respect or that require
the making of any changes in such Registration Statement or
Prospectus so that it will not contain any untrue statement
of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made (in the case of any Prospectus), not
misleading (which notice shall be accompanied by an
instruction to the selling Holders and the managing
underwriters, if any, to suspend the use of the Prospectus
until the requisite changes have been made);
(12) if requested by the managing underwriters, if
any, or a Holder of Registrable Securities being sold, promptly
incorporate in a prospectus, supplement or post-effective amendment
such information as the managing underwriters, if any, and the Holders
of a majority of the Registrable Securities being sold reasonably
request to be included therein relating to the sale of the Registrable
Securities, including, without limitation, information with respect to
the number of shares of Registrable Securities being sold to
underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten
offering of the Registrable Securities to be sold in such offering, and
make all required filings of such prospectus, supplement or
post-effective amendment promptly following notification of the matters
to be incorporated in such supplement or post-effective amendment;
(13) if requested, furnish to each selling Holder of
Registrable Securities and the managing underwriter, without charge, at
least one signed copy of the Registration Statement;
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(14) as promptly as practicable upon the occurrence
of any event contemplated by Section 5(c)(14)e) above, prepare a
supplement or post-effective amendment to the Registration Statement or
the Prospectus, or any document incorporated therein by reference, or
file any other required document so that, as thereafter delivered to
the purchasers of the Registrable Securities being sold hereunder, the
Prospectus will not contain an untrue statement of a material fact or
an omission to state a material fact required to be stated in a
Registration Statement or Prospectus or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and
(15) if such offering is an underwritten offering,
enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings)
and take all such other appropriate and reasonable actions requested by
the Holders owning a majority of the Registrable Securities being sold
in connection therewith or by the managing underwriters (including
cooperating in reasonable marketing efforts, including in connection
with any Demand Registration, participation by senior executives of the
Company in any "roadshow" or similar meeting with potential investors)
in order to expedite or facilitate the disposition of such Registrable
Securities, and in such connection, provide indemnification provisions
and procedures substantially to the effect set forth in Section 7
hereof with respect to all parties to be indemnified pursuant to said
Section. The above shall be done at each closing under such
underwriting or similar agreement, or as and to the extent required
thereunder.
Each Holder agrees by acquisition of such Registrable
Securities that, upon receipt of written notice from the Company of the
happening of any event of the kind described in Section 5(c)(11), such Holder
will forthwith discontinue disposition of such Registrable Securities covered
by such Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Registration Statement contemplated by Section
5(c)(14), or until it is advised in writing by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated or deemed to be incorporated by
reference in such prospectus (such period during which disposition is
discontinued being an "Interruption Period"), and, if so directed by the
Company, such Holder will deliver to the Company all copies of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
Section 6. Registration Expenses.
(a) Expenses Payable by the Company. The Company shall bear
all expenses incurred with respect to the registration or attempted
registration of the Registrable Securities pursuant to Sections 2, 3 and 4 of
this Agreement as provided herein. Such expenses shall include, without
limitation, (i) all registration, qualification and filing fees (including,
without limitation, (A) fees with respect to compliance with the Commission,
(B) fees with respect to filings required to be made with the national
securities exchange or national market system on which the Common Stock is then
traded or quoted and (C) fees and expenses of compliance with state securities
or blue sky laws (including, without limitation, fees and disbursements of
counsel for the Company or the underwriters, or both, in connection with blue
11
sky qualifications of Registrable Securities)), (ii) messenger and delivery
expenses, word processing, duplicating and printing expenses (including without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust Company, printing
preliminary prospectuses, prospectuses, prospectus supplements, including those
delivered to or for the account of the Holders and provided in this Agreement,
and blue sky memoranda), (iii) fees and disbursements of counsel for the
Company, (iv) fees and disbursements of all independent certificated public
accountants for the Company (including, without limitation, the expense of any
"comfort letters" required by or incident to such performance), (v) all
out-of-pocket expenses of the Company (including without limitation, expenses
incurred by the Company, its officers, directors, and employees performing
legal or accounting duties or preparing or participating in "roadshow"
presentations or of any public relations, investor relations or other
consultants or advisors retained by the Company in connection with any
roadshow, including travel and lodging expenses of such roadshows), (vi) fees
and expenses incurred in connection with the quotation or listing of shares of
Common Stock on any national securities exchange or other securities market,
and (vii) reasonable fees and expenses of one firm of counsel for all selling
Holders.
(b) Expenses Payable by the Holders. The Holders shall pay
all underwriting discounts and commisions or placement fees of underwriters or
broker's commissions incurred in connection with the sale or other disposition
of Registrable Securities for or on behalf of a Holder's account.
Section 7. Indemnification.
(a) Indemnification by the Company. The Company agrees to
indemnify, to the fullest extent permitted by law, each Holder, each affiliate
of a Holder and each director, officer, employee, manager, partner, member,
counsel, agent or representative of such Holder and its affiliates and each
Person who controls any such Person (within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act) (collectively, "Holder
Indemnified Parties") against, and hold it and them harmless from, all losses,
claims, damages, liabilities, costs (including, without limitation, costs of
preparation and attorneys' fees and disbursements) and expenses, including
expenses of investigation and amounts paid in settlement (collectively,
"Losses") arising out of, caused by or based upon any untrue or alleged untrue
statement of material fact contained in any Registration Statement, or any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading (a
"Misstatement/Omission"), or any violation or alleged violation by the Company
of the Securities Act, the Exchange Act, any state securities law, or any rule
or regulation promulgated under the Securities Act, the Exchange Act or any
state securities law, except that the Company shall not be liable insofar as
such Misstatement/Omission or violation is made in reliance upon and in
conformity with information furnished in writing to the Company by such Holder
expressly for use therein; provided, further, that the Company shall not be
liable for a Holder's failure to deliver or cause to be delivered (to the
extent such delivery is required under the Securities Act) the Prospectus
contained in the Registration Statement, furnished to it by the Company at or
prior to the time such action is required by the Securities Act to the person
claiming a Misstatement/Omission if such Misstatement/Omission was corrected in
such Registration Statement. In connection with an underwritten offering, the
Company will indemnify such underwriters, selling brokers, dealer managers and
similar
12
securities industry professionals participating in the distribution,
their officers and directors and each Person who controls such underwriters
(within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders. This indemnity shall be in addition to any
other indemnification arrangements to which the Company may otherwise be party.
Notwithstanding the foregoing, the indemnity contained in this section shall
not apply to amounts paid in settlement of any such Losses if such settlement
is effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such case for
any such Losses to the extent that they arise out of or are based upon a
Misstatement/Omission included in reliance upon and in conformity with written
information furnished expressly for use in connection with such Registration
Statement by such Holder (or any partner, officer, director, underwriter or
controlling person of such Holder).
(b) Indemnification by the Holders. In connection with any
Registration Statement in which a Holder is participating, each such Holder
agrees to indemnify, to the fullest extent permitted by law the Company and
each affiliate, director, officer, employee, counsel, agent or representative
of the Company and each Person who controls the Company (within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act)
against, and hold it harmless from, any Losses arising out of or based upon (i)
any Misstatement/Omission contained in the Registration Statement, if and to
the extent that such Misstatement/Omission arose out of or was based upon
information furnished in writing by such Holder for use therein, or (ii) the
failure by such Holder to deliver or cause to be delivered (to the extent such
delivery is required under the Securities Act) the Prospectus contained in the
Registration Statement, furnished to it by the Company at or prior to the time
such action is required by the Securities Act to the person claiming a
Misstatement/Omission if such Misstatement/Omission was corrected in such
Registration Statement. Notwithstanding the foregoing, the obligation to
indemnify will be individual (several and not joint) to each Holder and will be
limited to the net amount of proceeds (net of payment of all expenses) received
by such Holder from the sale of Registrable Securities pursuant to such
Registration Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any
action, claim or proceeding shall be brought against any Person entitled to
indemnification hereunder, such indemnified party shall promptly notify each
indemnifying party in writing, and such indemnifying party shall assume the
defense thereof, including the employment of one counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses
incurred in connection with the defense thereof. The failure to so notify such
indemnifying party shall relieve such indemnifying party of its indemnification
obligations to such indemnified party to the extent that such failure to notify
prejudiced such indemnifying party. Each indemnified party shall have the right
to employ separate counsel in such action, claim or proceeding and participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of each indemnified party unless: (i) such indemnifying party has
agreed to pay such expenses; (ii) such indemnifying party has failed promptly
to assume the defense and employ counsel reasonably satisfactory to such
indemnified party; or (iii) the named parties to any such action, claim or
proceeding (including any impleaded parties) include both such indemnified
party and such indemnifying party or an affiliate or controlling person of such
indemnifying party, and such indemnified party shall have been advised in
writing by counsel that either (x)
13
there may be one or more legal defenses available to it which are different
from or in addition to those available to such indemnifying party or such
affiliate or controlling person or (y) a conflict of interest may exist if such
counsel represents such indemnified party and such indemnifying party or its
affiliate or controlling person; provided, however, that such indemnifying
party shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or circumstances,
be responsible hereunder for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel), which counsel shall be
designated by such indemnified party or, in the event that such indemnified
party is a Holder Indemnified Party, by the Holders of a majority of the
Registrable Securities included in the subject Registration Statement.
No indemnifying party shall be liable for any settlement
effected without its written consent (which consent may not be unreasonably
withheld). Each indemnifying party agrees, jointly and severally, that it will
not, without the indemnified party's prior written consent, consent to entry of
any judgment or settle or compromise any pending or threatened claim, action or
proceeding in respect of which indemnification or contribution may be sought
hereunder unless the foregoing contains an unconditional release, in form and
substance reasonably satisfactory to the indemnified parties, of the
indemnified parties from all liability and obligation arising therefrom. The
indemnifying party's liability to any such indemnified party hereunder shall
not be extinguished solely because any other indemnified party is not entitled
to indemnity hereunder.
(d) Survival. The indemnification provided for under this
Agreement will (i) remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party, (ii) survive the
transfer of securities and (iii) survive the termination of this Agreement.
(e) Right to Contribution. If the indemnification provided
for in this Section 7 is unavailable to, or insufficient to hold harmless, an
indemnified party under Section 7(a) or Section 7(b) above in respect of any
Losses referred to in such Sections, then each applicable indemnifying party
shall have an obligation to contribute to the amount paid or payable by such
indemnified party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of the Company, on the one hand, and
of the Holder, on the other, in connection with the Misstatement/Omission which
resulted in such Losses, taking into account any other relevant equitable
considerations. The amount paid or payable by a party as a result of the Losses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 8(c) above, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation, lawsuit or legal
or administrative action or proceeding.
The relative fault of the Company, on the one hand, and of the Holder,
on the other, shall be determined by reference to, among other things, whether
the relevant Misstatement/Omission relates to information supplied by the
Company or by the Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such Misstatement/Omission.
14
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 7(e) were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7(e), a Holder shall not be required to contribute
any amount in excess of the amount by which (i) the amount (net of payment of
all expenses) at which the securities that were sold by such Holder and
distributed to the public were offered to the public exceeds (ii) the amount of
any damages which such Holder has otherwise been required to pay by reason of
such Misstatement/Omission.
No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
Section 8. Rules 144 and 144A.
The Company shall timely file the reports required to be filed by it
under the Securities Act and the Exchange Act (including but not limited to the
reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c) of Rule 144 adopted by the Commission under the Securities
Act) and the rules and regulations adopted by the Commission thereunder (or, if
the Company is not required to file such reports, it will; upon the request of
any holder of Registrable Securities, make publicly available other
information) and will take such further action as any holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable such Holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144 and Rule 144A under the Securities Act, as such Rules may be amended from
time to time, or (b) any similar rule or regulation hereafter adopted by the
Commission.
Section 9. Underwritten Registrations.
(a) No Person may participate in any registration hereunder
which is underwritten unless such Person (i) agrees to sell such Person's
securities on the basis provided in any underwriting arrangements approved by
the Person or Persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, customary
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements; provided, that, no Holder included in
any underwritten registration shall be required to make any representations or
warranties to the Company or the underwriters other than representations and
warranties regarding such Holder and such Holder's intended method of
distribution.
(b) In order to participate in a registration hereunder
which is underwritten, to the extent not inconsistent with applicable law, each
Holder of Registrable Securities agrees not to effect any public sale or
distribution of any Registrable Securities being registered or of any
securities convertible into or exchangeable or exercisable for such Registrable
Securities, including a sale pursuant to Rule 144 under the Securities Act,
during the period beginning on the effective date of such registration
statement and ending on the expiration of any lock-up period reasonably
required by the underwriters, provided such period shall not
15
exceed 180 days from and including the date of pricing of the securities being
offered in such registration.
Section 10. Covenants of Holders.
Each of the Holders hereby agrees (a) to cooperate with the Company
and to furnish to the Company all such information in connection with the
preparation of the Registration Statement and any filings with any state
securities commissions as the Company may reasonably request, (b) to the extent
required by the Securities Act, to deliver or cause delivery of the prospectus
contained in the Registration Statement, any amendment or supplement thereto,
to any purchaser of the Registrable Securities covered by the Registration
Statement from the Holder and (c) to notify the Company within three months
after any sale of Registrable Securities by such Holder or, in the case of a
sale of all or substantially all of the Registrable Securities owned by a
Holder, within ten days after such sale.
Section 11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with, adversely effects or violates the rights granted to the
Holders in this Agreement; it being understood that the granting of additional
demand or piggyback registration rights with respect to capital stock of the
Company shall not be deemed inconsistent with or adverse to the rights granted
to Holders hereunder, and the rights of the Holders shall be subject to any
such additional grants.
(b) Remedies. Any Person having rights under any provision
of this Agreement will be entitled to enforce such rights specifically to
recover damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. The parties hereto
agree and acknowledge that money damages may not be an adequate remedy for any
breach of the provisions of this Agreement and hereby agree to waive the
defense in any action for specific performance or injunctive relief that a
remedy at law would be adequate. Accordingly, any party may in its sole
discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or other security) for specific performance and for
other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(c) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement, including the provisions of this
sentence, may be amended, modified, supplemented or waived only upon the prior
written consent of the Company and Holders of a majority of the outstanding
Registrable Securities.
(d) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. The Holders may assign all rights under this agreement;
provided, however, that no Investor or Holder may transfer or assign its rights
hereunder unless such transferring Investor or Holder shall, prior to any such
transfer, obtain from the transferee a joinder agreement in a form reasonably
satisfactory to the Company and the Holders and deliver a copy of such joinder
agreement to the Company and to the Holders; provided, also, that no assignment
of rights under
16
this Agreement by any Investor or Holder will be valid unless made in
connection with a transfer of Registrable Securities that complies with the
provisions of the Amended and Restated Rights Agreement of the Company or the
Charter. Only persons (other than the initial Investors hereto) that execute a
joinder agreement shall be deemed to be Holders. The Company shall be given
written notice by the transferring Holder at the time of the transfer stating
the name and address of the transferee and identifying the Registrable
Securities transferred, provided, that, failure to give such notice shall not
affect the validity of such transfer or assignment.
(e) Termination of Registration Rights. The rights of any
Holder to cause the Company to register Registrable Securities under this
Agreement shall terminate with respect to such Holder as soon as such Holder is
legally able to dispose of all of its Registrable Securities in one transaction
pursuant to Rule 144 under the Securities Act.
(f) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected, it being intended that the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
(g) Counterparts. This Agreement may be executed in any
number of counterparts, any one of which need not contain the signatures of
more than one party, but each of which when so executed shall be deemed to be
an original and all such counterparts taken together shall constitute one and
the same Agreement.
(h) Descriptive Headings: Interpretation. The descriptive
headings of this Agreement are inserted for convenience of reference only and
shall not limit or otherwise affect the meaning hereof. The use of the word
"including" in this Agreement shall be by way of example rather than by
limitation.
(i) Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile or similar
writing) and shall be given to such party at its address, facsimile number or
e-mail address set forth beneath the party's name on the signature pages
hereof, or, if not the signature pages hereof, on the signature pages of any
joinder agreement executed and delivered pursuant to Section 11(d) of this
Agreement, or such other person or address or facsimile number as may be
designated in writing by the party to receive such notice and provided to the
Company in accordance with this Section. Each such notice, request or other
communication shall be effective (a) if given by facsimile, when such facsimile
is transmitted to the facsimile number specified in this Section and receipt is
confirmed, (b) if given by mail, three business days after such communication
is deposited in the mail registered or certified, return receipt requested,
with postage prepaid, addressed as aforesaid, (c) if given by an overnight
delivery service, one business day after such communication is deposited with a
reputable, overnight delivery service, postage or delivery charges prepaid,
addressed as aforesaid, or (d) if given by any other means, when delivered,
physically or electronically, at the address as specified in this Section.
17
(j) GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS
AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE
INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF. The
parties hereby irrevocably submit to the jurisdiction of the courts of the
State and County of New York and the Federal courts of the United States of
America located in the Southern District of the State of New York solely in
respect of the interpretation and enforcement of the provisions of this
Agreement and of the documents referred to in this Agreement, and in respect of
the transactions contemplated hereby, and hereby waive, and agree not to
assert, as a defense in any action, suit or proceeding for the interpretation
or enforcement hereof or of any such document, that it is not subject thereto
or that such action, suit or proceeding may not be brought or is not
maintainable in said courts or that the venue thereof may not be appropriate or
that this Agreement or any such document may not be enforced in or by such
courts, and the parties hereto irrevocably agree that all claims with respect
to such action or proceeding shall be heard and determined in such a New York
State or Federal court. The parties hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject matter of
such dispute and agree that mailing of process or other papers in connection
with any such action or proceeding in the manner provided in the Section on
notices below or in such other manner as may be permitted by law shall be valid
and sufficient service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
18
IN WITNESS WHEREOF the parties hereto have or have caused this
Registration Rights Agreement to be duly executed as of the date first above
written
THE COMPANY:
PERSONNEL GROUP OF AMERICA, INC.
By: /s/ βββββ β. βββββββββ
-------------------------------------
Name: βββββ β. βββββββββ
Title: Chief Executive Officer
Address: Personnel Group of America, Inc.
ββββ βββββ βββββ βββββββ, βββ βββββ
βββββββββ, βββββ ββββββββ βββββ-ββββ
Attention: βββ ββββββββ, ββ.
E-mail: βββββββββ@βββ-βββ.βββ
Facsimile: (βββ) βββ-ββββ
with a copy to:
ββββββββ, ββββββββ & ββββββ, P.A.
βββ βββββ βββββ ββββββ, βββββ ββββ
βββββββββ, βββββ ββββββββ βββββ
Attention: βββββ β. ββββ
Facsimile: (βββ) βββ-ββββ
Email: βββββ@βββ.βββ
S-1
[Registration Rights Agreement]
THE INVESTORS:
INLAND PARTNERS, L.P.
By: /s/ βββββ β. ββββ
--------------------------------------------
Name: βββββ β. ββββ
Title: Attorney-in-Fact
LINKS PARTNERS, L.P.
By: /s/ βββββ β. ββββ
--------------------------------------------
Name: βββββ β. ββββ
Title: Attorney-in-Fact
Address: Inland Partners, L.P. and Links
Partners L.P.
c/o βββββ β. ββββ
The Compass Group
β ββββ βββββ, βββββ ββββ
ββββββ, ββββββββββ βββββ
E-mail: βββββ@βββββββββββββ.βββ
Facsimile: (βββ) βββ-ββββ
with a copy to:
Stroock & Stroock & βββββ LLP
βββ ββββββ ββββ
βββ ββββ, βββ ββββ βββββ
Attention: ββββ β. ββββββ, Esq.
Facsimile: (βββ) βββ-ββββ
Email: βββββββ@βββββββ.βββ
and to: I. ββββββ βββββββ
The Compass Group
ββ ββββββ ββββ, ββββββ βββββ
ββββββββ, βββββββββββ βββββ
Facsimile: (βββ) βββ-ββββ
Email: βββ@βββββββββββββ.βββ
S-2
[Registration Rights Agreement]
MATLINPATTERSON GLOBAL OPPORTUNITIES
PARTNERS L.P.
By: MatlinPatterson Global Advisers LLC,
its Investment Advisor
/s/ ββββ βββββββββ
------------------------------------
By: Name: ββββ βββββββββ
Title: Chairman
Address: MatlinPatterson Global Advisers LLC
βββ βββββββ ββββββ
βββ ββββ, βββ ββββ βββββ-ββββ
Attention: βββββββββββ β. βββββββ
E-mail: βββββββ@βββββββ.βββ
Facsimile: (βββ) βββ-ββββ
with a copy to:
Stroock & Stroock & βββββ LLP
βββ ββββββ ββββ
βββ ββββ, βββ ββββ βββββ
Attention: ββββ β. ββββββ, Esq.
Facsimile: (βββ) βββ-ββββ
Email: βββββββ@βββββββ.βββ
S-3
[Registration Rights Agreement]
ZAZOVE ASSOCIATES, LLC, FOR AND ON BEHALF OF:
CENTURY NATIONAL INSURANCE COMPANY,
NATIONAL UNION FIRE INSURANCE COMPANY OF
PITTSBURGH, PA,
SDCERA HIGH YIELD,
ZAZOVE CONVERTIBLE SECURITIES FUND, INC.,
QWEST OCCUPATIONAL HEALTH TRUST,
QWEST PENSION TRUST,
HFR CA SELECT FUND,
ZURICH INSTITUTIONAL BENCHMARKS MASTER FUND LTD.,
ZAZOVE HIGH YIELD CONVERTIBLE SECURITIES FUND, L.P.,
ZAZOVE AGGRESSIVE GROWTH FUND,
ZAZOVE GLOBAL CONVERTIBLE FUND, L.P.,
ZAZOVE INCOME FUND, L.P.,
SAN DIEGO COUNTY EMPLOYEES RETIREMENT ASSOCIATION,
ZAZOVE HEDGED CONVERTIBLE FUND, L.P.
By: /s/ ββββββ β. βββββββ
----------------------------------------------
Name: ββββββ β. βββββββ
Title: Chief Operating Officer
Address: Zazove Associates, LLC
ββββ ββββββ ββββ.
βββββ ββββ
ββββββββββ, ββββββββ βββββ
Attention: βββββ ββββ
ββββ ββββββ
βββββ βββββββ
E-mail: ββββββ@ββββββ.βββ
Facsimile: (βββ) βββ-ββββ
S-4
[Registration Rights Agreement]
R2 INVESTMENTS, LDC
By: Amalgamated Gadget, L.P., its
Investment Manager
By: Scepter Holdings, Inc. its General Partner
By: /s/ ββββ βββββββββ
----------------------------------------------
Name: ββββ βββββββββ
Title: Chief Financial Officer
Address: R2 Investments, LDC
c/o Amalgamated Gadget, L.P., its Investment
Manager
βββ ββββββββ ββββββ, βββββ ββββ
ββββ βββββ, βββββ βββββ
Attention: General Counsel
E-mail: βββββββββ@ββββββββββ.βββ
ββββββββ@ββββββββββ.βββ
copy: βββββ@ββββββββ.βββ
Facsimile: (βββ) βββ-ββββ
S-5
[Registration Rights Agreement]
βββββ β. βββββββββββ
/s/ βββββ β. βββββββββββ
----------------------------------------
Address: βββββ β. βββββββββββ
βββββ ββββββββ ββββ ββββ
ββββββββββββ, ββ βββββ
E-mail: ββββββ@βββ.βββ
Facsimile: (βββ) βββ-ββββ
S-6
[Registration Rights Agreement]
βββββββ βββββ ββββββ
By: /s/ ββββ ββββ
----------------------------------------
Name: ββββ ββββ
Title: Managing Director
Address: βββββββ βββββ Barney Inc.
βββ βββββββββ ββ., βββ βββββ
βββ ββββ, ββ βββββ
Attn: βββββ βββββ
E-mail: βββββ.β.βββββ@βββββββββ.βββ
Facsimile: (βββ) βββ-ββββ
S-7
[Registration Rights Agreement]
SC FUNDAMENTAL VALUE FUND, L.P.
By: SC Fundamental LLC, its General Partner
By: /s/ ββββ β. βββββββ
----------------------------------------------
Name: ββββ β. βββββββ
Title: Member
SC FUNDAMENTAL VALUE BVI, LTD.
By: SC Fundamental Value BVI, Inc., as Managing
General Partner of its Investment Manager
/s/ ββββ β. βββββββ
----------------------------------------------
Name: ββββ β. βββββββ
By: Title: Vice President
Address: SC Fundamental Value Value Fund, L.P. and
SC Fundamental Value BVI, Ltd.
c/o SC Fundamental LLC
βββ βββββββββ ββββββ
βββ ββββ, ββ βββββ
Attn: βββββ βββββββ
ββββ β. βββββββ
E-mail: ββββββ@βββββββββββββ.βββ
βββββ@βββββββββββββ.βββ
Facsimile: (βββ) βββ-ββββ
S-8
[Registration Rights Agreement]
ββββββ ASSOCIATES, LLC
By: /s/ ββββ ββββββ
--------------------------------------
Name: ββββ ββββββ
Title: Chief Investment Officer
Address: ββββββ Associates LLC
βββ ββ βββββ βββ., βββββ ββββ
ββββββββ, ββ βββββ
Attn: ββββ ββββββ
E-mail: βββββββ@ββββββ-ββββββββββ.βββ
Facsimile: (βββ) βββ-ββββ
S-9
[Registration Rights Agreement]
HIGHBRIDGE CAPITAL MANAGEMENT LLC
By: Highbridge Capital Management
By: /s/ ββββββ ββββββ
------------------------------------------
Name: ββββββ ββββββ
Title:
Address: HighBridge International LLC
β ββββ ββββ ββββββ, ββββ βββββ
βββ ββββ, ββ βββββ
Attn: ββββββ ββββββ
E-mail: ββββββ.ββββββ@βββββ.βββ
Facsimile: (βββ) βββ-ββββ
S-10
[Registration Rights Agreement]
ββββ ββββββ
/s/ ββββ ββββββ
----------------------------------------------
ββββ ββββββ, ON BEHALF OF βββββ β. ββββββ &
ββββ βββ ββββββ JTWROS
/s/ ββββ ββββββ
----------------------------------------------
Address: ββ. ββββ ββββββ
Zazove Associates, LLC
ββββ ββββββ ββββ.
βββββ ββββ
ββββββββββ, ββββββββ βββββ
E-mail:
Facsimile: (βββ) βββ-ββββ
S-11
[Registration Rights Agreement]
LC CAPITAL MASTER FUND, LTD.
By: /s/ ββββββ βββββ
--------------------------------------
Name: ββββββ βββββ
Title: Managing Member
Address: L.C. Capital Master Fund, Ltd.
βββ βββββ ββββββ, βββββ ββββ
Name: ββββββ βββββ
βββ ββββ, ββ βββββ
Attention: ββββββ βββββ
E-mail: βββββ@βββββββββββ.βββ
Facsimile: (βββ) βββ-ββββ
S-12
[Registration Rights Agreement]
BANK OF AMERICA, N.A., formerly known as NationsBank,
N.A. and Bank of Amercia Illinois
By: /s/ H. βββββββ ββββββ
--------------------------------------------------
Name: H. βββββββ ββββββ
------------------------------------------------
Title: Managing Director
-----------------------------------------------
Signature Page to Registration Rights Agreement
Personnel Group of America, Inc.
April ββββ
ββββ ββ βββββββ STRATEGIC SOLUTIONS, INC.
By: /s/ H. βββββββ ββββββ
--------------------------------------------------
Name: H. βββββββ ββββββ
------------------------------------------------
Title: Managing Director
-----------------------------------------------
Signature Page to Registration Rights Agreement
Personnel Group of America, Inc.
April 2003
BNP PARIBAS
By: /s/ βββββ βββββββββ
--------------------------------------------------
Name: βββββ βββββββββ
------------------------------------------------
Title: Managing Director
-----------------------------------------------
By: /s/ Shayn March
--------------------------------------------------
Name: Shayn March
------------------------------------------------
Title: Vice President
-----------------------------------------------
Signature Page to Registration Rights Agreement
Personnel Group of America, Inc.
April 2003
BANK ONE, NA
By: /s/ ββββββ β. βββββ
--------------------------------------------------
Name: ββββββ β. βββββ
------------------------------------------------
Title: First Vice President
-----------------------------------------------
Signature Page to Registration Rights Agreement
Personnel Group of America, Inc.
April 2003
HBV CAPITAL MANAGEMENT LLC
By: /s/ ββββββ β. Komonas
--------------------------------------------------
Name: ββββββ β. Komonas
------------------------------------------------
Title: Portfolio Manager
-----------------------------------------------
Signature Page to Registration Rights Agreement
Personnel Group of America, Inc.
April ββββ
ββββββ PARTNERS L.P.
By: /s/ βββββ β. ββββ
------------------------------------------------------
Name: βββββ β. ββββ
----------------------------------------------------
Title: Attorney-in-Fact
---------------------------------------------------
Signature Page to Registration Rights Agreement
Personnel Group of America, Inc.
April 2003
LINKS PARTNERS L.P.
By: /s/ βββββ β. ββββ
------------------------------------------------------
Name: βββββ β. ββββ
----------------------------------------------------
Title: Attorney-in-Fact
---------------------------------------------------
Signature Page to Registration Rights Agreement
Personnel Group of America, Inc.
April 2003
MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS L.P.
BY: MATLINPATTERSON GLOBAL ADVISERS LLC
By: /s/ ββββββ β. βββββ
------------------------------------------------------
Name: ββββββ β. βββββ
----------------------------------------------------
Title: General Counsel
---------------------------------------------------
Signature Page to Registration Rights Agreement
Personnel Group of America, Inc.
April 2003
BNP Paribas
βββββββ ββββββ-Nivet
βββ βββββββ ββββββ
βββ ββββ, ββ βββββ
Fax Phone: βββ-βββ-ββββ
Office Phone: βββ-βββ-ββββ
Work Email: βββββββ.ββββββ-βββββ@ββββββββ.ββββββββββ.βββ
BNP Paribas
ββββββ ββββ
βββ βββββββ ββββββ, βββ βββββ
βββ ββββ, ββ βββββ
Fax Phone: βββ-βββ-ββββ
Office Phone: βββ-βββ-ββββ
Work Email: ββββββ.ββββ@ββββββββ.ββββββββββ.βββ
Bank One, NA
βββββ β. βββββ
Suite 0631
One Bank βββ βββββ
βββββββ, ββ βββββ
Fax Phone: βββ-βββ-ββββ
Office Phone: βββ-βββ-ββββ
Work Email: βββββ_β_βββββ@βββββββ.βββ
Bank of America, N.A.
βββ ββββββ
Corporate Center βββ β. βββββ ββ.
βββββββββ, ββ βββββ
Fax Phone: βββ-βββ-ββββ
Office Phone: βββ-βββ-ββββ
Work Email: βββββββ.ββββββ@βββββββββββββ.βββ
Bank of America, N.A., as Agent
SuzieAnna Wan
CA5-701-12-09
ββββ ββββββ ββββββ
βββ βββββββββ, ββ βββββ
Fax Phone: βββ-βββ-ββββ
Office Phone: βββ-βββ-ββββ
Work Email: βββββββββ.βββ@βββββββββββββ.βββ
Signature Page to Registration Rights Agreement
Personnel Group of America, Inc.
April 2003
HBV Capital Management LLC
ββββββ βββββββ
Suite 3300
βββ ββββ ββββββ
βββ ββββ, ββ βββββ-ββββ
Fax Phone: βββ-βββ-ββββ
Office Phone: βββ-βββ-ββββ
Work Email: ββββββββ@ββββββ.βββ
Signature Page to Registration Rights Agreement
Personnel Group of America, Inc.
April 2003