Exhibit 4.12
Form 10-K 2001, Amendment No. 1
Headway Corporate Resources, Inc.
File No. 1-16025
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
HEADWAY CORPORATE RESOURCES, INC.,
AND
EACH OF THE PURCHASERS REFERRED TO HEREIN
Dated as of April 17, 2002
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 17, 2002, (the
"Agreement") by and among FSC CORPORATION (an affiliate and designee of FLEET
NATIONAL BANK), TRANSAMERICA BUSINESS CAPITAL CORPORATION, CITIZENS BANK OF
MASSACHUSETTS, WACHOVIA BANK, NATIONAL ASSOCIATION, and BANK OF AMERICA, N.A.,
and each of its transferees, successors and assigns (collectively the
"Purchasers") and HEADWAY CORPORATE RESOURCES, INC., a Delaware corporation (the
"Company").
WHEREAS, pursuant to that certain Credit Agreement dated as of March 19,
1998, by and among the Purchaser and certain other parties thereto
(collectively, the "Lenders") and the Company (the "Original Credit Agreement"),
the Lenders extended the credit facilities to the Company set forth in the
Original Credit Agreement;
WHEREAS, in order to induce the Lenders to amend and restate the Original
Credit Agreement and enter into the Amended and Restated Credit Agreement (as
hereinafter defined), the Company desires to issue the Warrants (as hereinafter
defined) and provide for the registration of the Common Stock of the Company
issuable on the exchange, exercise or conversion of the Warrants.
NOW, THEREFORE, in consideration on the foregoing premises and for other
good and valuable consideration, the adequacy and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions. The following terms shall have the meanings
ascribed to them below:
"Amended and Restated Credit Agreement" means that certain Amended and
Restated Credit Agreement dated as of April 17, 2002 by and among the Company,
Agent and the Lenders.
"Business Day" means any day other than a day on which banks are authorized
or required to be closed in the State of New York.
"Commission" means the United States Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, par value $.0001 per share, of
Headway Corporate Resources, Inc., as it may exist from time to time.
"Demand Registration" means a Demand Registration as defined in Section
2.1.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Event of Default" means an Event of Default as defined in the Amended and
Restated Credit Agreement.
"Holder" means any person who now holds or shall hereafter acquire and hold
Registrable Securities.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"Piggy-Back Registration" means a Piggy-Back Registration as defined in
Section 2.2.
"Prospectus" means the prospectus included in any Registration Statement
(including without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the 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.
"Records" means the records of the Company as set forth in Section 3.1.
"Registrable Securities" means the shares of Common Stock issued or
issuable upon exercise of the Warrants, until (i) a Registration Statement
covering such shares of Common Stock has been declared effective by the
Commission and such shares of Common Stock have been disposed of pursuant to
such effective Registration Statement, or (ii) such shares of Common Stock are
sold under circumstances in which all of the applicable conditions of Rule 144
(or any similar provisions then in force) under the Securities Act are met, or
(iii) such shares of Common Stock have been otherwise transferred and the
Company has delivered a new certificate or other evidence of ownership for such
Common Stock not bearing a restrictive legend and not subject to any stop
transfer or similar restrictive order and all of such Common Stock may be resold
by the person receiving such certificate without complying with the registration
requirements of the Securities Act.
"Registration Statement" means any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration Statement.
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"Required Holders" means the Holders of a majority of the Registrable
Securities.
"Securities Act" means the Securities Act of 1933 or any similar Federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a Registration Statement under the Securities Act.
"Selling Holders Counsel" means the counsel selected to represent the
Selling Holders as set forth in Section 3.1
"Target Effective Date" means the date a Registration Statement is required
to be declared effective by the Commission as set forth in Section 3.1.
"Target Effective Period" means the period a Registration Statement is
required to be effective as set forth in Section 2.1.
"Target Filing Date" means the date a Registration Statement is required to
be filed with the Commission as set forth in Section 3.1.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
"Warrant" means any warrant issued pursuant to a Common Stock Purchase
Warrant dated as of April __, 2002 by and among the Company and each of the
Purchasers.
ARTICLE II.
REGISTRATION RIGHTS
SECTION 2.1. Demand Registration.
(a) Request for Registration. From time to time any Holder or Holders may
make written requests (individually, a "Request") on the Company for the
registration of the offer and sale of the Registrable Securities under the
Securities Act (such registration being hereinafter referred to as a "Demand
Registration"). The Company shall not effect a Demand Registration unless the
Request is made by Holders who, alone or together with other Holders making the
Request, hold in the aggregate not less than 35% of the outstanding Registrable
Securities. Subject to the penultimate sentence of Section 2.1(b), the Company
shall have no obligation to effect more than four Demand Registrations. Any
Request will specify the number of Registrable Securities proposed to be sold
and the intended method(s) of disposition thereof and shall also state the firm
intent of the Holder to offer Registrable Securities for sale. The Company shall
give written notice of such Request within 10 days after the receipt thereof to
all other Holders. Within 20 days after receipt of such notice by any such
Holder, such Holder may request in writing that all or any portion of its
Registrable Securities be included in such Registration Statement and the
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Company shall include in the Registration Statement for such Demand Registration
the Registrable Securities of all Holders that requested to be so included. Each
such request by such other Holders shall specify the number of Registrable
Securities proposed to be sold and the intended method(s) of disposition thereof
and shall also state the firm intent of the Holder to offer Registrable
Securities for sale.
(b) Effective Registration. A registration will not be deemed to have been
effected as a Demand Registration unless the Registration Statement relating
thereto has been declared effective by the Commission and the Company has
complied in all material respects with its obligations under this Agreement with
respect thereto; provided that if, after the Registration Statement has become
effective, the offering and/or sale of Registrable Securities pursuant to such
Registration Statement is or becomes the subject of any stop order, injunction
or other order or requirement of the Commission or any other governmental or
administrative agency, or if any court or other governmental or
quasi-governmental agency prevents or otherwise limits the offer and/or sale of
the Registrable Securities pursuant to the Registration Statement, other than in
each case primarily as a result of acts or omissions of the Holder or any agent
thereof, such registration will be deemed not to have been effected. If (i) a
registration requested pursuant to this Section 2.1 is deemed not to have been
effected or (ii) the Registration Statement relating to a Demand Registration
requested pursuant to this Section 2.1 does not remain effective for a period of
at least 270 consecutive days beyond the effective date thereof or, with respect
to an underwritten offering of Registrable Securities, until 45 days after the
commencement of the distribution by the Holders of the Registrable Securities
included in such Registration Statement (such periods being referred to herein
as the "Target Effective Periods"), then the Company shall continue to be
obligated to effect such Registration pursuant to this Section 2.1. The Holders
shall be permitted to withdraw all or any part of the Registrable Securities
from a Registration Statement at any time prior to the effective date of such
Demand Registration Statement; provided that in the event of such withdrawal,
such Holders shall be responsible for the fees and expenses referred to in
Section 3.3(viii) hereof incurred by such Holders with respect to such Demand
Registration prior to such withdrawal.
(c) Selection of Underwriter. If the Required Holders participating in a
Demand Registration so elect, the offering of such Registrable Securities
pursuant to such Demand Registration shall be in the form of an underwritten
offering. The Holders making such Demand Registration shall select, subject to
the approval of the Company, which approval will not be unreasonably withheld,
one or more nationally recognized firms of investment bankers to act as the lead
managing Underwriter or Underwriters in connection with such offering and shall
select any additional investment bankers and managers to be used in connection
with the offering.
SECTION 2.2. Piggy-Back Registration. If at any time the Company proposes
to file a Registration Statement under the Securities Act with respect to an
offering by the Company for its own account or for the account of any of its
respective security holders (other than (x) a Registration Statement on Form S-8
(or any substitute form that may be adopted by the Commission), (y) a
Registration Statement on Form S-4 (or any substitute form that may be adopted
by the Commission); provided that such Registration Statement on Form S-4 does
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not include any securities other than the securities to be issued by the Company
in connection with a transaction that is referenced in clauses (1) through (3)
of the General Instructions A.1. of Form S-4 (as such General Instructions are
currently in effect), or (z) a Registration Statement pursuant to a Demand
Registration pursuant to Section 2.1), then the Company shall give written
notice of such proposed filing to the Holders as soon as practicable (but in no
event less than 30 days before the anticipated filing date), and such notice
shall offer such Holders the opportunity to register such number of Registrable
Securities as each such Holder may request (which request shall specify the
Registrable Securities intended to be disposed of by such Holder and the
intended method(s) of distribution thereof and shall also state the firm intent
of the Holder to offer Registrable Securities for sale) (a "Piggy-Back
Registration"). The Company shall use all reasonable efforts to cause the
managing Underwriter or Underwriters of a proposed underwritten offering to
permit the Registrable Securities requested to be included in a Piggy-Back
Registration to be included on the same terms and conditions as any similar
securities of the Company or any other security holder included therein and to
permit the sale or other disposition of such Registrable Securities in
accordance with the intended method of distribution thereof. Any Holder shall
have the right to withdraw its request for inclusion of its Registrable
Securities in any Registration Statement pursuant to this Section 2.2 by giving
written notice to the Company of its request to withdraw, provided that in the
event of such withdrawal (other than pursuant to Section 2.3(c) hereof), such
Holder shall be responsible for the fees and expenses referred to in Section
3.3(viii) hereof incurred by such Holder prior to such withdrawal relating to
such Registration Statement. The Company may withdraw a Piggy-Back Registration
at any time prior to the time it becomes effective.
No registration effected under this Section 2.2, and no failure to effect a
registration under this Section 2.2, shall relieve the Company of its obligation
to effect a registration upon the request of Holders pursuant to Section 2.1,
and no failure to effect a registration under this Section 2.2 and to complete
the sale of Registrable Securities in connection therewith shall relieve the
Company of any other obligation under this Agreement (including, without
limitation, the Company's obligations under Sections 3.2 and 4.1).
SECTION 2.3. Reduction of Offering.
(a) Demand Registration. The Company may include in a Demand Registration
pursuant to Section 2.1 securities of the same class as the Registrable
Securities for the account of the Company and any other Persons who hold
securities of the same class as the Registrable Securities on the same terms and
conditions as the Registrable Securities to be included therein; provided,
however, that (i) if the managing Underwriter or Underwriters of any
underwritten offering described in Section 2.1 have informed the Company in
writing that it is their opinion that the total number of Registrable
Securities, and securities of the same class as the Registrable Securities which
Holders, the Company and any other Persons desiring to participate in such
registration intend to include in such offering is such as to materially and
adversely affect the success of such offering, then the number of shares to be
offered for the account of the Company and for the account of all such other
Persons (other than the Holders) participating in such registration shall be
reduced or limited pro rata in proportion to the respective number of shares
requested to be registered to the extent necessary to reduce the total number of
shares requested to be included in such offering to the number of shares, if
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any, recommended by such managing Underwriter or Underwriters, and (ii) if the
offering is not underwritten, no other Person, including the Company, shall be
permitted to offer securities under any such Demand Registration unless the
Required Holders participating in the offering consent to the inclusion of such
shares therein.
(b) Piggy-Back Registration. (i) Notwithstanding anything contained herein,
if the managing Underwriter or Underwriters of any underwritten offering
described in Section 2.2 have informed, in writing, the Holders requesting
inclusion in such offering that it is their opinion that the total number of
shares which the Company, Holders and any other Persons holding securities of
the same class as the Registrable Securities desiring to participate in such
registration intend to include in such offering is such as to materially and
adversely affect the success of such offering, then, the Company will include in
such registration (x) first, the shares offered by the holders of securities who
demanded such registration ("Demand Holders"), if any, (y) then, if additional
shares may be included in such registration without materially and adversely
affecting the success of such offering, all the shares the Company offered for
its own account, if any, and (z) then, if additional shares may be included in
such registration without materially and adversely affecting the success of such
offering, the number of shares offered by the Holders and such other holders of
securities of the same class as the Registrable Securities whose piggy-back
registration rights may not be reduced without violating their contractual
rights (provided such contractual rights were in existence prior to the date of
this Agreement), on a pro rata basis in proportion to the relative number of
Registrable Securities of the holders (including the Holders) participating in
such registration.
(ii) If the managing Underwriter or Underwriters of any underwritten
offering described in Section 2.2 notify the Holders requesting inclusion
in such offering that the kind of securities that the Holders, the Company
and any other Persons desiring to participate in such registration intend
to include in such offering is such as to materially and adversely affect
the success of such offering, (x) the Registrable Securities to be included
in such offering shall be reduced as described in clause (i) above or (y)
if such reduction would, in the judgment of the managing Underwriter or
Underwriters, be insufficient to substantially eliminate the adverse effect
that inclusion of the Registrable Securities requested to be included would
have on such offering, such Registrable Securities will be excluded from
such offering.
(c) If, as a result of the proration provisions of this Section 2.3, any
Holder shall not be entitled to include all Registrable Securities in a Demand
Registration or Piggy-Back Registration that such Holder has requested to be
included, such Holder may elect to withdraw his request to include Registrable
Securities in such registration; provided, however that if a Holder withdraws
his request pursuant to this Paragraph 2.3(c) such Holder shall not be
responsible for the fees and expenses referred to in Section 3.3(viii) hereof.
SECTION 2.4. Subsequent Registration Rights. From and after the date of
this Agreement, the Company shall not, without the prior written consent of the
Required Holders, enter into any other agreement with any holder or prospective
holder of any securities of the Company which would allow such holder or
prospective holder (a) to include such securities in any registration filed
under Section 2.2 or 2.3(b) hereof, unless under the terms of such agreement,
such holder or prospective holder may include such securities in any such
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registration only to the extent that the inclusion of its securities will not
reduce the amount of the Registrable Securities of the Holders which is included
or (b) to make a demand registration which could result in such registration
statement being declared effective prior to the earlier of the dates set forth
in subsection 3.1(a).
ARTICLE III.
REGISTRATION PROCEDURES
SECTION 3.1. Filings; Information. Whenever the Company is required to
effect or cause the registration of the offer and sale of Registrable Securities
pursuant to Section 2.1 or 2.2 hereof, the Company will use its best efforts to
effect the registration of the offer and the sale of such Registrable Securities
in accordance with the intended method(s) of disposition thereof as quickly as
practicable, and in connection with any such request:
(a) The Company promptly will prepare and file with the Commission a
Registration Statement with respect to the offer and sale of such securities and
use its best efforts to cause such Registration Statement to become and remain
effective until the completion of the distribution contemplated thereby;
provided, however, the Company shall not be required to keep such Registration
Statement effective for more than 270 days (or such shorter period which will
terminate when all Registrable Securities covered by such Registration Statement
have been sold, but not prior to the expiration of the applicable period
referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if
applicable); provided, further, that with respect to a Demand Registration, the
Company shall file with the Commission a Registration Statement as soon as is
practicable after the date of the Request and in any event no later than 60 days
after the date of the Request for the Demand Registration (the "Target Filing
Date") and shall cause such Registration Statement to be declared effective as
soon as is practicable after the date of filing and in any event no later than
120 days after the date of such Request (the "Target Effective Date"); provided,
further however, that with respect to a Request for Demand Registration made
prior to the first anniversary of the date hereof, other than with respect to a
Request for Demand Registration made subsequent to an Event of Default, the
Company shall not be obligated to cause such Registration Statement to be
declared effective prior to the first anniversary of the date hereof.
(b) The Company promptly will prepare and file with the Commission such
amendments and post-effective amendments to the Registration Statement as may be
necessary to keep such Registration Statement effective for as long as such
registration is required to remain effective pursuant to the terms hereof; cause
the Prospectus to be supplemented by any required Prospectus supplement, and, as
so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act applicable to it with respect
to the disposition of all Registrable Securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the Selling Holders set forth in such Registration Statement
or supplement to the Prospectus.
(c) The Company, at least ten (10) Business Days prior to filing a
Registration Statement or at least five (5) Business Days prior to filing a
Prospectus or any amendment or supplement to such Registration Statement or
Prospectus, will furnish to (i) each Selling Holder, (ii) not more than one
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counsel representing all Selling Holders ("Selling Holders Counsel"), to be
selected by a majority-in-interest of such Selling Holders, and (iii) each
Underwriter, if any, of the Registrable Securities covered by such Registration
Statement copies of such Registration Statement as proposed to be filed,
together with exhibits thereto, which documents will be subject to review and
approval by each of the foregoing within five (5) Business Days after delivery
(except that such review and approval of any Prospectus or any amendment or
supplement to such Registration Statement or Prospectus must be within three (3)
Business Days after delivery), and thereafter, furnish to such Selling Holders,
Selling Holders Counsel and Underwriters, if any, such number of conformed
copies of such Registration Statement, each amendment and supplement thereto (in
each case including all exhibits thereto and documents incorporated by reference
therein), the Prospectus included in such Registration Statement (including each
preliminary Prospectus) and such other documents or information as such Selling
Holders, Selling Holders Counsel or Underwriters may reasonably request in order
to facilitate the disposition of the Registrable Securities (it being understood
that the Company consents to the use of the Prospectus and any amendment or
supplement thereto by each Selling Holder and the Underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto).
(d) The Company promptly will notify each Selling Holder of (and in any
event within 24 hours of the receipt of) any stop order issued or threatened by
the Commission and take all reasonable actions required to prevent the entry of
such stop order or to remove it at the earliest possible moment if entered.
(e) On or prior to the date on which the Registration Statement is declared
effective, use its best efforts to register or qualify such Registrable
Securities under such other securities or "blue sky" laws of such jurisdictions
as any Selling Holder, Selling Holders Counsel or Underwriter requests and do
any and all other acts and things which may be necessary or advisable to enable
such Selling Holder to consummate the disposition in such jurisdictions of such
Registrable Securities owned by such Selling Holder; use its best efforts to
keep each such registration or qualification (or exemption therefrom) effective
during the period which the Registration Statement is required to be kept
effective; and use its best efforts to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the applicable Registration Statement;
provided that the Company will not be required to (A) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this paragraph (e), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction.
(f) The Company will notify each Selling Holder, Selling Holders Counsel
and any Underwriter promptly (and in any event within 24 hours) and (if
requested by any such Person) confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the
Commission or any other federal or state governmental authority for amendments
or supplements to a Registration Statement or Prospectus or for additional
information to be included in any Registration Statement or Prospectus or
otherwise, (iii) of the issuance by the Commission of any stop order suspending
the effectiveness of a Registration Statement or the initiation or threatening
of any proceedings for that purpose, (iv) of the issuance by any state
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securities commission or other regulatory authority of any order suspending the
qualification or exemption from qualification of any of the Registrable
Securities under state securities or "blue sky" laws or the initiation of any
proceedings for that purpose, and (v) of the happening of any event which makes
any statement made in a Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated by reference therein untrue
or which requires the making of any changes in such Registration Statement,
Prospectus or documents so that they 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 in the Registration Statement and Prospectus
not misleading in light of the circumstances in which they were made; and, as
promptly as practicable thereafter, prepare and file with the Commission and
furnish a supplement or amendment to such Prospectus so that, as thereafter
deliverable to the buyers of such Registrable Securities, such Prospectus will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(g) The Company will make generally available an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act no later than
90 days after the end of the 12-month period beginning with the first day of the
Company's first fiscal quarter commencing after the effective date of a
Registration Statement, which earnings statement shall cover said 12-month
period, and which requirement will be deemed to be satisfied if the Company
timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and
otherwise complies with Rule 158 under the Securities Act.
(h) If requested by the managing Underwriter or Underwriters, Selling
Holders Counsel, or any Selling Holder, the Company will, unless otherwise
advised by counsel, promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing Underwriter or
Underwriters requests, or Selling Holders Counsel requests, to be included
therein, including, without limitation, with respect to the Registrable
Securities being sold by such Selling Holder to such Underwriter or
Underwriters, the purchase price being paid therefor by such Underwriter or
Underwriters and with respect to any other terms of the underwritten offering of
the Registrable Securities to be sold in such offering, and promptly make all
required filings of such Prospectus supplement or post-effective amendment.
(i) The Company will enter into customary agreements reasonably
satisfactory to the Company (including, if applicable, an underwriting agreement
in customary form and which is reasonably satisfactory to the Company) and take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities (the Selling Holders, at their
option, may require that any or all of the representations, warranties and
covenants of the Company to or for the benefit of such Underwriters also be made
to and for the benefit of such Selling Holders).
(j) The Company will make available to each Selling Holder (and will
deliver to their counsel) and each Underwriter, if any, subject to restrictions
imposed by the United States federal government or any agency or instrumentality
thereof, copies of all correspondence between the Commission and the Company,
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its counsel or auditors and will also make available for inspection at
reasonable times at the Company's offices by any Selling Holder of such
Registrable Securities, any Underwriter participating in any disposition
pursuant to such Registration Statement and any attorney, accountant or other
professional retained by any such Selling Holder or Underwriter (collectively,
the "Inspectors"), all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records") as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers and employees to supply all
information reasonably requested by any Inspectors in connection with such
registration statement.
(k) In connection with an underwritten offering, the Company will
participate, to the extent reasonably requested by the managing Underwriter or
Underwriters for the offering or the Selling Holders, in reasonable and
customary efforts to sell the securities under the offering, including, without
limitation, participating in "road shows."
(l) The Company, during the period when the Prospectus is required to be
delivered under the Securities Act, promptly will file all documents required to
be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act.
(m) The Company, if requested by Selling Holders, shall cause its outside
legal counsel to deliver an opinion relating to the Registrable Securities, in
customary form to such Selling Holders and any Underwriter therefor, cause its
officers to execute and deliver all customary documents and certificates
requested by any Underwriters of the Registrable Securities, and cause its
independent public accountants to provide to such Selling Holders and any
Underwriters therefor one or more comfort letters in customary form.
The Company may require each Selling Holder to promptly furnish in writing
to the Company such information regarding the distribution of the Registrable
Securities as the Company may from time to time reasonably request and such
other information as may be legally required in connection with such
registration including, without limitation, all such information as may be
requested by the Commission or the National Association of Securities Dealers,
Inc.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3.1(f)
hereof, such Selling Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until such Selling Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3.1(f) hereof, and,
if so directed by the Company, such Selling Holder will deliver to the Company
all copies, other than permanent file copies then in such Selling Holder's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. In the event the Company shall give such
notice, the Company shall extend the period during which such Registration
Statement shall be maintained effective (including the period referred to in
Section 3.1(a) hereof) by the number of days during the period from and
including the date of the giving of notice pursuant to Section 3.1(f) hereof to
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the date when the Company shall make available to the Selling Holders covered by
such Registration Statement a Prospectus supplemented or amended to conform with
the requirements of Section 3.1(f) hereof.
SECTION 3.2. Liquidated Damages. If the Registration Statement with respect
to a Demand Registration is not filed on or before the Target Filing Date, the
Company shall pay liquidated damages to each Selling Holder in an amount equal
to $.10 per 100 Registrable Securities per week beginning on the Target Filing
Date. If the Registration Statement with respect to a Demand Registration is
filed but has not become effective on or before the Target Effective Date, the
Company shall pay liquidated damages to each Selling Holder in an amount equal
to $.10 per 100 Registrable Securities per week beginning on the Target
Effective Date. The weekly liquidated damages associated with a late filing or a
late declaration of effectiveness shall increase by an amount equal to $.05 per
100 Registrable Securities 90 days after the Target Filing Date or the Target
Effective Date, as the case may be, and shall thereafter increase by an amount
equal to $.05 per 100 Registrable Securities at the end of each subsequent 90
day period for so long as the Registration Statement with respect to a Demand
Registration is not filed or declared effective, as the case may be. If a stop
order is imposed or if for any other reason the effectiveness of the
Registration Statement with respect to a Demand Registration is suspended for a
period in excess of 10 consecutive days during the Target Effective Period, then
the Company shall pay liquidated damages to each Holder of Registrable
Securities in an amount equal to $.10 per 100 Registrable Securities per week
beginning on the day that is 10 consecutive days after the imposition of such
stop order or other suspension of effectiveness. The weekly liquidated damages
associated with a suspension of the effectiveness of the Registration Statement
with respect to a Demand Registration shall increase by an amount equal to $.05
per 100 Registrable Securities 90 days after the stop order was imposed or the
Registration Statement with respect to a Demand Registration was otherwise
suspended, and shall thereafter increase by an amount equal to $.05 per 100
Registrable Securities at the end of each subsequent 90 day period for so long
as the effectiveness remains suspended. Liquidated damages shall be deemed to
commence accruing on the day in which the event triggering such liquidated
damages occurs (the "Trigger Date").
The Company shall pay the liquidated damages due with respect to the
Registrable Securities as additional amounts to the Selling Holders quarterly on
the first day of each Fiscal Quarter (as defined in the Amended and Restated
Credit Agreement), in Federal or other immediately available funds. Liquidated
damages not previously paid, if any, shall be payable on each such dividend
payment date, and the liquidated damages shall be paid to the record holders of
Registrable Securities (as of the record date with respect to each applicable
dividend payment date) entitled to receive such liquidated damages.
The liquidated damages to be paid to Selling Holders pursuant to this
Section 3.2 shall cease to accrue, (i) with respect to the liquidated damages
for failure to file on or prior to the Target Filing Date, on the day the
Registration Statement is filed, (ii) with respect to the liquidated damages for
failure to have the Registration Statement declared effective on or prior to the
Target Effective Date, on the day after the Registration Statement is declared
effective, or (iii) with respect to the liquidated damages for the suspension of
effectiveness, on the day after the reinstatement of effectiveness of the
Registration Statement.
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SECTION 3.3. Registration Expenses. The Company shall pay all expenses
incident to the Company's performance of or compliance with this Agreement
including, without limitation: (i) all registration and filing fees, (ii) the
fees and expenses of compliance with securities or blue sky laws (including fees
and disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), (iii) all printing, messenger and delivery expenses,
(iv) the Company's internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), (v) the fees and expenses incurred in connection with the
listing or quotation, as appropriate, of the Registrable Securities, (vi) the
fees and disbursements of counsel for the Company and the fees and expenses for
independent certified public accountants retained by the Company (including the
expenses of any special audit or cold comfort letters), (vii) the fees and
expenses of any special experts retained by the Company in connection with such
registration, and (viii) the fees and expenses of Selling Holders Counsel. The
Company shall have no obligation to pay any underwriting fees, discounts or
commissions attributable to the sale of Registrable Securities and any of the
expenses incurred by Selling Holders which are not payable by the Company, such
costs to be borne by the Selling Holder or Selling Holders.
ARTICLE IV.
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.1. Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law, each
Selling Holder, its partners, officers, directors, employees, advisors and
agents, and each Person, if any, who controls such Selling Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
together with the partners, officers, directors, employees and agents of such
controlling Person (collectively, the "Controlling Persons"), from and against
any loss, claim, damage, liability, attorneys' fees, cost or expense and costs
and expenses of investigating and defending any such claim (collectively, the
"Damages") and any action in respect thereof to which such Selling Holder, its
partners, officers, directors, employees, advisors and agents, and any such
Controlling Person may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such Damages (or proceedings in respect thereof) arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus or any
preliminary Prospectus, or arise out of, or are based upon, any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
the same are based upon information furnished in writing to the Company by a
Selling Holder expressly for use therein, and shall reimburse each Selling
Holder, its partners, officers, directors, employees, advisors and agents, and
each such Controlling Person for any legal and other expenses reasonably
incurred by that Selling Holder, its partners, officers, directors, employees,
advisors and agents, or any such Controlling Person in investigating or
defending or preparing to defend against any such Damages or proceedings;
provided, however, that the Company shall not be liable to any Selling Holder or
other indemnitee to the extent that any such Damages arise out of or are based
upon an untrue statement or omission made in any preliminary Prospectus if (i)
such Selling Holder failed to send or deliver a copy of the final Prospectus
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with or prior to the delivery of written confirmation of the sale by such
Selling Holder to the Person asserting the claim from which such Damages arise
in any case where such delivery of the Prospectus (as amended or supplemented)
is required by the Securities Act, and (ii) the final Prospectus would have
corrected such untrue statement or such omission, where such failure to deliver
the Prospectus was not a result of non-compliance by the Company under Section
3.1(f) of this Agreement. The Company also agrees to indemnify any Underwriters
of the Registrable Securities, their officers and directors and each Person who
controls such Underwriters on substantially the same basis as that of the
indemnification of the Selling Holders provided in this Section 4.1.
SECTION 4.2. Indemnification by Selling Holders. Each Selling Holder
agrees, severally but not jointly, to indemnify and hold harmless the Company,
its officers, directors, employees, advisors and agents and each Person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, together with the partners, officers,
directors, employees, advisors and agents of such controlling Person, to the
same extent as the foregoing indemnity from the Company to such Selling Holder,
but only with reference to information related to such Selling Holder, or its
plan of distribution, furnished in writing by such Selling Holder expressly for
use in any Registration Statement or Prospectus, or any amendment or supplement
thereto, or any preliminary Prospectus; provided, however, that such Selling
Holder shall not be liable in any such case to the extent that prior to the
filing of any such Registration Statement or Prospectus or amendment or
supplement thereto, such Selling Holder has furnished in writing to the Company
information expressly for use in such Registration Statement or Prospectus or
any amendment or supplement thereto which corrected or made not misleading
information previously furnished to the Company. In no event shall the liability
of any Selling Holder be greater in amount than the dollar amount of the
proceeds received by such Selling Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation. In case any action or
proceeding shall be brought against the Company or its officers, directors,
employees, advisors or agents or any such controlling Person or its officers,
directors, employees or agents, in respect of which indemnity may be sought
against such Selling Holder, such Selling Holder shall have the rights and
duties given to the Company, and the Company or its officers, directors,
employees or agents, or such controlling Person, or its officers, directors,
employees, advisors or agents, shall have the rights and duties given to such
Selling Holder, by the preceding paragraph.
SECTION 4.3. Conduct of Indemnification Proceedings. Promptly after receipt
by any person in respect of which indemnity may be sought pursuant to Section
4.1 or 4.2 (an "Indemnified Party") of notice of any claim or the commencement
of any action, the Indemnified Party shall, if a claim in respect thereof is to
be made against the Person against whom such indemnity may be sought (an
"Indemnifying Party"), notify the Indemnifying Party in writing of the claim or
the commencement of such action; provided that the failure to notify the
Indemnifying Party shall not relieve it from any liability which it may have to
an Indemnified Party otherwise than under Section 4.1 or 4.2 except to the
extent of any actual prejudice resulting therefrom. If any such claim or action
shall be brought against an Indemnified Party, and it shall notify the
Indemnifying Party thereof, the Indemnifying Party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any other
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similarly notified Indemnifying Party, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable to
the Indemnified Party for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided that the Indemnified Party shall
have the right to employ separate counsel to represent the Indemnified Party and
its controlling Persons who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, but the fees and expenses of such counsel shall be for the
account of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel or
(ii) in the opinion of counsel to such Indemnified Party, representation of both
parties by the same counsel would be inappropriate due to actual or potential
conflicts of interest between them, it being understood, however, that the
Indemnifying Party shall not, in connection with any one such claim or action or
separate but substantially similar or related claims or actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all Indemnified
Parties. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any claim or pending or threatened
proceeding in respect of which the Indemnified Party is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Party,
unless such settlement includes an unconditional release of such Indemnified
Party from all liability arising out of such claim or proceeding. Whether or not
the defense of any claim or action is assumed by the Indemnifying Party, such
Indemnifying Party will not be subject to any liability for any settlement made
without its consent, which consent will not be unreasonably withheld.
SECTION 4.4. Contribution. If the indemnification provided for in this
Article 4 is unavailable to the Indemnified Parties in respect of any Damages
referred to herein, then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Damages in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Selling Holders on the other from the offering of the Registrable
Securities, or if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits but also
the relative fault of the Company on the one hand and the Selling Holders on the
other in connection with the statements or omissions which resulted in such
Damages, as well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of each Selling Holder on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
Damages referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
15
or defending any such action or claim. Notwithstanding the provisions of this
Section 4.4, no Selling Holder shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities of such Selling Holder were offered to the public exceeds the amount
of any damages which such Selling Holder has otherwise paid by reason of such
untrue or alleged untrue statement or omission or alleged 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. Each Selling Holder's
obligations to contribute pursuant to this Section 4.4 is several in the
proportion that the proceeds of the offering received by such Selling Holder
bears to the total proceeds of the offering received by all the Selling Holders
and not joint.
ARTICLE V.
MISCELLANEOUS
SECTION 5.1. Participation in Underwritten Registrations. No Person may
participate in any underwritten registration hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements, and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and these
registration rights.
SECTION 5.2. Rule 144. The Company agrees and will use its best efforts to
file any reports required to be filed by it under the Securities Act and the
Exchange Act (or, if the Company is not required to file such reports, it will,
upon the request of any Holder, make publicly available other information as
long as necessary to permit sales under Rule 144 under the Securities Act) and
that it will take such further action as any Holder may reasonably request, all
to the extent required from time to time to enable Holders to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 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. Upon the request of any Holder, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
SECTION 5.3. Amendment and Modification. Any provision of this Agreement
may be waived, provided that such waiver is set forth in a writing executed by
the party against whom the enforcement of such waiver is sought. This Agreement
may not be amended, modified or supplemented other than by a written instrument
signed by the Required Holders; provided, however, that without the consent of
all the Holders, no amendment or modification which materially and adversely
affects the ability of such Holders to have the offer and sale of securities
registered hereunder may be effected. No course of dealing between or among any
Persons having any interest in this Agreement will be deemed effective to
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modify, amend or discharge any part of this Agreement or any rights or
obligations of any Person under or by reason of this Agreement.
SECTION 5.4. Successors and Assigns; Third Party Beneficiaries; Entire
Agreement. This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto, each subsequent Holder and their
respective successors and assigns and executors, administrators and heirs.
Holders are intended third party beneficiaries of this Agreement and this
Agreement may be enforced by such Holders. This Agreement sets forth the entire
agreement and understanding between the parties as to the subject matter hereof
and merges and supersedes all prior discussions, agreements and understandings
of any and every nature among them.
SECTION 5.5. Headings. Subject headings are included for convenience only
and shall not affect the interpretation of any provisions of this Agreement.
SECTION 5.6. Notices. Any notice, demand, request, waiver, or other
communication under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if personally served or sent by
telecopy, on the business day after notice is delivered to a courier or mailed
by express mail if sent by courier delivery service or express mail for next day
delivery and on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered, return receipt
requested, postage prepaid and addressed as follows:
If to the Company to:
Headway Corporate Resources, Inc.
317 Madison Avenue, 3rd Floor
New York, New York 10017
Attention: Ms. Philicia G. Levinson, Senior Vice President
and Chief Financial Officer
Telephone: (212) 672-6661
Telefacsimile: (212) 672-6699
with copies to:
Salans Hertzfeld Heilbronn Christy & Viener
Rockefeller Center
620 Fifth Avenue
New York, New York 10020-2457
Attention: Richard B. Salomon, Esq.
Telephone: (212) 632-5500
Telefacsimile: (212) 632-5555
and:
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Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153-0119
Attn: Ted Waksman, Esq.
Telephone: (212) 310-8000
Telefacsimile: (212) 310-8007
If to a Holder, to the Holder at the most current address given by
such Holder to the Company in writing, and to:
Bank of America, N.A.
Bank of America Agency Services
901 Main St.
Dallas, Texas 75202-3714
Attention: Diana Lopez
Telephone: (214) 209-2138
Telefacsimile: (214) 209-2515
with copies to:
Banc of America Strategic Solutions, Inc.
1101 Wootton Parkway
Third Floor
Rockville, Maryland 20852-1059
Attention: Michael Heredia
Telephone: (301) 517-3234
Telefacsimile: (301) 517-3236
and:
O'Melveny & Myers LLP
153 East 53rd Street, 54th Floor
New York, New York 10022-4611
Attention: Sandeep Qusba and David Kitchen
Telephone: (212) 326-2117
Telefacsimile: (213) 326-2061
SECTION 5.7. Governing Law; Forum; Process. This Agreement shall be
construed in accordance with, and governed by, the laws of the State of New York
as applied to contracts made and to be performed entirely in the State of New
York without regard to principles of conflicts of law. Each of the parties
hereto hereby irrevocably and unconditionally submits to the exclusive
jurisdiction of any court of the State of New York or any federal court sitting
in the State of New York for purposes of any suit, action or other proceeding
arising out of this Agreement (and agrees not to commence any action, suit or
proceedings relating hereto except in such courts). Each of the parties hereto
18
agrees that service of any process, summons, notice or document by U.S.
registered mail at its address set forth herein shall be effective service of
process for any action, suit or proceeding brought against it in any such court.
Each of the parties hereto hereby irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement, which is brought by or against it, in the courts of the State
of New York or any federal court sitting in the State of New York and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
SECTION 5.8. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, and all of which together shall
constitute a single agreement.
SECTION 5.9. Severability. In the event that any one or more of the
immaterial provisions contained in this Agreement shall for any reason be held
to be invalid, illegal or unenforceable, the same shall not affect any other
provision of this Agreement, but this Agreement shall be construed in a manner
which, as nearly as possible, reflects the original intent of the parties.
SECTION 5.10. No Prejudice. The terms of this Agreement shall not be
construed in favor of or against any party on account of its participation in
the preparation hereof.
SECTION 5.11. Words in Singular and Plural Form. Words used in the singular
form in this Agreement shall be deemed to import the plural, and vice versa, as
the sense may require.
SECTION 5.12. Remedy for Breach. The Company hereby acknowledges that in
the event of any breach or threatened breach by the Company of any of the
provisions of this Agreement, the Holder would have no adequate remedy at law
and could suffer substantial and irreparable damage. Accordingly, the Company
hereby agrees that, in such event, the Holder shall be entitled, without the
necessity of proving damages or posting bond, and notwithstanding any election
by any Holder to claim damages, to obtain a temporary and/or permanent
injunction, without proving a breach therefor, to restrain any such breach or
threatened breach or to obtain specific performance of any such provisions, all
without prejudice to any and all other remedies which any Holder may have at law
or in equity.
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMPANY
HEADWAY CORPORATE RESOURCES, INC.
By: /s/
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PURCHASERS
BANK OF AMERICA, N.A.
By: /s/
Lending Office:
Banc of America Strategic Solutions, Inc.
1101 Wootton Parkway
Third Floor
Rockville, Maryland 20852-1059
Attention: Michael Heredia
Telephone: (301) 517-3234
Telefacsimile: (301) 517-3236
FSC CORPORATION (an affiliate and designee of
FLEET NATIONAL BANK)
By: /s/
Lending Office:
FSC Corporation
Managed Assets Division
777 Main Street
Mailcode CTEH40221A
Hartford, Connecticut 06115
Attention: G. Christopher Miller
Telephone: (860) 986-1563
Telefacimile: (860) 986-2435
CITIZENS BANK OF MASSACHUSETTS
By: /s/
Lending Office:
Citizens Bank of Massachusetts
28 State Street, 15th Floor
Boston, Massachusetts 02109
Attention: Steve Petrarca
Telephone: (617) 994-7139
Telefacsimile: (617) 263-0439
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TRANSAMERICA BUSINESS CAPITAL CORPORATION
By: /s/
Lending Office:
Transamerica Business Capital Corporation
8750 W. Bryn Mawr, Suite 720
Chicago, Illinois 60631
Attention: Ari Kaplan
Telephone: (773) 864-3978
Telefacsimile: (773) 380-6179
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/
Lending Office:
301 South College Street, CP-6
Charlotte, North Carolina 28288-0760
Attention: Joel Thomas
Telephone: (704) 383-4281
Telefacsimile: (704) 383-6249
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