ASSIGNMENT AND STOCK PURCHASE AGREEMENT
THIS ASSIGNMENT AND STOCK PURCHASE AGREEMENT, dated as of December 10, 1999
(this "Agreement"), is made by and among Outsourcing Solutions Inc., a Delaware
corporation (the "Company"), Madison Dearborn Capital Partners III, L.P.
("MDP"), Madison Dearborn Special Equity III, L.P. ("MDSE"), Special Advisors
Fund I, L.L.C. ("SAE"), DB Capital Investors, L.P. ("DB"), First Union
Investors, Inc. ("First Union"), Abbott Capital 1330 Investors II, L.P.
("Abbott"), Abbott Capital Private Equity Fund III, L.P. ("Abbott III"), BNY
Partners Fund, L.L.C. ("BNY"), FBR Financial Fund II, L.P. ("FBR") and Harvest
Opportunity Partners, L.P. ("Harvest", and along with MDSE, SAE, DB, First
Union, Abbott, Abbott III, BNY and FBR a "Purchaser" and collectively the
"Purchasers"). Except as otherwise indicated, capitalized terms used herein are
defined in Section 7 hereof.
WHEREAS, MDP, the Company and others are parties to a Stock Subscription
and Redemption Agreement, dated as of October 8, 1999, and attached as Exhibit 1
hereto, and a First Amendment to Stock Subscription and Redemption Agreement,
dated as of the date hereof, and attached as Exhibit 2 hereto (as amended, the
"Recapitalization Agreement");
WHEREAS, MDP wishes to assign certain of its rights in, to and under the
Recapitalization Agreement to the Purchasers, and the Purchasers wish to be
assigned certain of MDP's rights in, to and under the Recapitalization
Agreement;
NOW THEREFORE, subject to the terms and conditions set forth in the
Recapitalization Agreement and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
Section 1. Assignment. Subject to the terms and conditions set forth
herein, MDP hereby grants, transfers and assigns to each Purchaser, individually
and not jointly and severally, the right pursuant to the Recapitalization
Agreement to purchase from the Company such shares of Voting Common Stock or
Non-Voting Common Stock, as applicable, as set forth on Schedule 1 attached
hereto together with all rights, title, interest and remedies related thereto as
set forth in the Recapitalization Agreement or that may otherwise be available
under applicable law (the "Assignment"). Each Purchaser, individually and not
jointly and severally, hereby accepts the Assignment; provided, that the
obligations of each Purchaser pursuant to this Assignment shall be limited to
the extent of the obligations set forth in this Agreement. The Company hereby
consents to the Assignment.
Section 2. Sale of Common Stock. Pursuant to the Assignment, and subject to
the terms and conditions of the Recapitalization Agreement, the Company will
sell to each Purchaser, and each Purchaser will purchase from the Company, such
shares as set forth on Schedule 1 of Voting Common Stock, par value $0.01 per
share (the "Voting Common Stock") and Non-Voting Common Stock, par value $0.01
per share (the "Non-Voting Common Stock", together with the Voting Common Stock,
the "Common Stock"), as applicable, for a purchase price of $37.54 per share
(being the same purchase price per share of Voting Common Stock paid by MDP
under the Recapitalization Agreement).
Section 3. The Closing. The closing of the sale and purchase of the Common
Stock hereunder (the "Closing") will take place at the offices of White & Case,
1155 Avenue of the Americas, New York, New York 10036. At the Closing, the
Company will deliver to each Purchaser a certificate or certificates evidencing
the number of shares of Common Stock to be purchased by such Purchaser,
registered in the name of such Purchaser against payment of the purchase price
therefor by delivery of a cashier's or certified check or checks of immediately
available funds or by wire transfer of immediately available funds to a bank
account designated by the Company.
Section 4. Conditions Precedent to Sale of Common Stock.
4.A. Conditions to Each Party's Obligations. The respective obligations of
each of the parties hereto to effect the transactions set forth in this
Assignment shall be subject to fulfillment or waiver at or prior to the Closing
of each of the conditions set forth in Section 5.01 of the Recapitalization
Agreement.
4.B. Conditions to Obligations of the Company. The obligations of the
Company to effect the sale of the Common Stock pursuant to this Assignment shall
be subject to the fulfillment at Closing of the following conditions, any one of
which may be waived by the Company.
(a) The representations and warranties of each Purchaser set forth herein
shall be true and correct in all respects.
(b) Each Purchaser shall have performed and complied in all material
respects with
all of the covenants and agreements and satisfied in all material respects all
of the conditions required by this Assignment to be complied with or satisfied
by each Purchaser at or prior to Closing.
(c) Each other condition set forth in Section 5.02 of the Recapitalization
Agreement shall be fulfilled at or prior to the Closing.
4.C. Conditions to Obligations of each Purchaser. The obligations of each
Purchaser to effect the purchase of the Common Stock pursuant to this Assignment
shall be subject to the fulfillment at Closing of the following conditions, any
one of which may be waived by the applicable Purchasers with respect to its
obligations:
(a) The representations and warranties of the Company set forth herein
shall be true and correct in all respects.
(b) The Company shall have performed and complied in all material respects
with all of the covenants and agreements and satisfied in all material respects
all of the conditions required by this Assignment to be complied with or
satisfied by the Company at or prior to Closing.
(c) Each other condition set forth in Section 5.03 of the Recapitalization
Agreement shall be fulfilled at or prior to the Closing.
Section 5. Representations and Warranties of the Company. The Company
hereby represents and warrants to each Purchaser each of the representations and
warranties of the Company set forth in Section 3.01 of the Recapitalization
Agreement, which are incorporated herein, were true and correct in all respects
when made on October 8, 1999.
Section 6. Purchasers' Representations and Warranties.
6.A. Purchasers' Investment Representations. Each Purchaser individually,
and not jointly or severally, hereby represents that he or it is acquiring the
Common Stock purchased hereunder for his or its own account with the present
intention of holding such securities for investment purposes and that it has no
intention of selling such securities in a public distribution in violation of
federal or state securities laws; provided that nothing contained herein will
prevent the Purchaser and the subsequent holders of such securities from
transferring such securities in compliance with applicable law and the
Stockholders Agreement. Each certificate for Common Stock will be conspicuously
imprinted with a legend substantially in the form set forth in Section 10 of the
Stockholders Agreement.
6.B. Other Representations and Warranties of the Purchasers. Each Purchaser
individually, and not jointly or severally, represents and warrants to and
covenants and agrees with, the Company that:
(i) the Purchaser is an "accredited investor" as defined in Rule 501(a)
under the Securities Act; and
(ii) the Purchaser has all requisite power and authority to enter into,
deliver and consummate the transactions contemplated by this Agreement
(including the purchase of the securities to be purchased by the Purchaser
hereunder) and this Agreement has been duly authorized, executed and delivered
by the Purchaser and constitutes a valid and binding obligation of the Purchaser
enforceable in accordance with its terms (subject to the availability of
equitable remedies and to the laws of bankruptcy and other similar laws
affecting creditors' rights generally) and, as applicable, does not violate the
Purchaser's charter, by-laws or other organizational documents.
Section 7. Definitions.
"Bylaws" means the Bylaws of the Company, as such Bylaws may be modified,
amended or amended and restated from time to time.
"Certificate of Incorporation" means the Company's Fourth Amended and
Restated Certificate of Incorporation.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a governmental entity or any
department, agency, or political subdivision thereof.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Stockholders Agreement" means the Stockholders Agreement, dated as of the
date hereof, by and among the parties hereto and others.
Section 8. Miscellaneous.
8.A. Amendments and Waivers. Except as otherwise provided herein, any
provision hereof may be amended or waived generally and the Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
holders of at least a majority of the outstanding shares of Common Stock issued
hereunder and, to the extent that any modification, amendment or waiver
adversely affects the rights of the holders of any class of Common Stock, by the
holders of at least a majority of the outstanding shares initially issued
hereunder of such adversely affected class of Common Stock. No course of dealing
between the Company and any holder of Common Stock or any delay on the part of
any such holder in exercising any rights hereunder or under any agreement
contemplated hereby or under the Certificate of Incorporation or the Bylaws will
operate as a waiver of any rights of any such holder.
8.B. Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by any party in connection
herewith will survive the execution and delivery of this Agreement, regardless
of any investigation made by any Purchaser or on its behalf.
8.C. Successors and Assigns. Except as otherwise expressly provided herein,
all covenants and agreements contained in this Agreement by or on behalf of any
of the parties hereto will bind and inure to the benefit of the respective
successors and assigns of such parties whether so expressed or not. In addition,
and whether or not any express assignment has been made, the provisions of this
Agreement which are for the Purchaser's benefit as the purchaser or holder of
Common Stock are also for the benefit of and enforceable by any subsequent
holder of such Purchaser's Common Stock.
8.D. Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable under any applicable law or rule in any jurisdiction, such
provision will be ineffective only to the extent of such invalidity, illegality
or unenforceability in such jurisdiction, without invalidating the remainder of
this Agreement in such jurisdiction or any provision hereof in any other
jurisdiction.
8.E. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same Agreement.
8.F. Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
8.G. Governing Law. All issues concerning the enforceability, validity and
binding effect of this Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the law of
any jurisdiction other than the State of New York.
8.H. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and shall be delivered personally or by telex or telecopy as described
below or by reputable overnight courier, and shall be deemed given on the date
on which such delivery is made. If delivered by telex or telecopy such notices
or communications shall be confirmed by a registered or certified letter (return
receipt requested), postage prepaid. 1.I.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment and Stock Purchase Agreement as of the date first written above.
OUTSOURCING SOLUTIONS INC.
By: /s/ Gary L. Weller
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Its: EVP
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MADISON DEARBORN CAPITAL PARTNERS
III, L.P.
By Madison Dearborn Partners III, L.P.
Its General Partners
By Madison Dearborn Partners, Inc.
Its General Partner
By /s/ Paul R. Wood
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Its
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MADISON DEARBORN SPECIALTY EQUITY
III, L.P.
By Madison Dearborn Partners III, L.P.
Its General Partners
By Madison Dearborn Partners, Inc.
Its General Partner
By /s/ Paul R. Wood
------------------------------
Its
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SPECIAL ADVISORS FUND I, LLC
By /s/ Paul R. Wood
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Its
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ABBOTT CAPITAL 1330 INVESTORS II, L.P.
By Abbott Capital 1330 GenPar II, L.L.C.
Its General Partners
By /s/ Thomas W. Hallagan
------------------------------
Name: Thomas W. Hallagan
Title: Manager
ABBOTT CAPITAL PRIVATE EQUITY FUND III, L.P.
By Abbott Capital Management, L.L.C.
Its General Partners
By /s/ Raymond L. Held
------------------------------
Name: Raymond L. Held
Title: Managing Director
BNY PARTNERS FUND, L.L.C.
By BNY Private Investment Management,
Inc.
Its Member Manager
By /s/ Burton M. Siegal
------------------------------
Name: Burton M. Siegal
Title: Senior Vice President
FBR FINANCIAL FUND II, L.P.
By: /s/
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Its: Senior Managing Director
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HARVEST OPPORTUNITY PARTNERS, L.P.
By: /s/ Joseph Jolson
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Its: Manager
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FIRST UNION INVESTORS, INC.
By: /s/
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Title:
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DB CAPITAL INVESTORS, L.P.
By: DB Capital Partners, L.P.
Its: General Partner
By DB Capital Partners, Inc.
By: /s/ Tyler Zachem
-----------------------------
Name: Tyler Zachem
Title: Managing Director