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REGISTRATION RIGHTS AGREEMENT
Dated as of December 10, 1999
among
OUTSOURCING SOLUTIONS INC.,
a Delaware corporation
AND
the Purchasers named herein
Relating to:
25,000 Shares of
Class A 14% Senior Mandatorily Redeemable Preferred Stock, and
75,000 Shares of
Class B 14% Senior Mandatorily Redeemable Preferred Stock
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of December 10, 1999, among Outsourcing Solutions Inc., a
Delaware corporation (the "Company"), and Ares Leveraged Investment Fund, L.P.,
Ares Leveraged Investment Fund II, L.P., DB Capital Investors, L.P., First Union
Investors, Inc., Abbott Capital 1330 Investors II, L.P., Abbott Capital Private
Equity Fund III, L.P., BNY Partners Fund, L.L.C., Heller Financial, Inc. and
Magnetite Asset Investors L.L.C. (each a "Purchaser" and, collectively, the
"Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
as of December 10, 1999, among the Company and the Purchasers (the "Purchase
Agreement"), relating to the sale by the Company to the Purchasers of an
aggregate of (i) 25,000 shares of the Company's Class A 14% Senior Mandatorily
Redeemable Preferred Stock (the "Class A Senior Preferred Stock"), (ii) 75,000
shares of the Company's Class B 14% Senior Mandatorily Redeemable Preferred
Stock (the "Class B Senior Preferred Stock," and together with the Class A
Senior Preferred Stock, the "Senior Preferred Stock"), and (iii) 596,913.07
shares of the Company's Common Stock (as defined herein) (such shares of Common
Stock, together with the Senior Preferred Stock, the "Purchased Securities"). In
order to induce the Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide to the Holders (as defined herein) the registration rights
for the Registrable Securities (as defined herein) set forth in this Agreement.
The execution of this Agreement is a condition to the obligations of the
Purchasers to purchase the Purchased Securities under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Advice" shall have the meaning ascribed to that term in the last
paragraph of Section 3.
"Affiliate" means, with respect to any specified Person: (i) any
other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person; (ii)
any other Person that owns, directly or indirectly, 10% or more of such
specified Person's Capital Stock; or (iii) any other Person 10% or more
of the Voting Stock of which is beneficially owned or held directly or
indirectly by such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing. With respect to each
Purchaser, an Affiliate shall also include, without limitation, any
Person managed by, or controlling or under common control with such
Purchaser or any of its Affiliates. Notwithstanding anything to the
contrary contained herein, (x) no portfolio company of the Equity
Investor nor any portfolio company of a fund managed by or affiliated
with the Equity Investor shall be deemed an Affiliate of the Company and
(y) no Purchaser or any of their respective Affiliates shall be deemed
an Affiliate of the Company.
"Agreement" shall have the meaning ascribed to that term in the
preamble hereto.
"Black Out Period" shall have the meaning ascribed to that term
in Section 2.1.
"Board of Directors" shall mean the Board of Directors of the
Company or any authorized committee of such Board of Directors.
"Business Day" shall mean a day that is not a Legal Holiday.
"Capital Stock" shall mean, (i) with respect to any Person that
is a corporation, corporate stock, (ii) with respect to any association
or business entity, any and all shares, interests, participations or
other equivalents (however designated and whether or not voting) of
corporate stock, including each class of common stock and preferred
stock of such Person; (iii) with respect to any Person that is not a
corporation, any and all partnership, membership or other equity
interests of such Person; and (iv) any rights, warrants or options
exchangeable for or convertible into any of the foregoing.
"Change of Control" shall have the meaning ascribed to that term
in the Certificate of Designation for the Senior Preferred Stock.
"Class A Senior Preferred Stock" is defined in the first recital
to this Agreement.
"Class B Senior Preferred Stock" is defined in the first recital
to this Agreement.
"Common Stock" shall mean the Company's $.01 par value common
stock of any class.
"Company" shall have the meaning ascribed to that term in the
preamble hereto and shall also include the Company's successors.
"Demand" shall have the meaning ascribed to that term in Section
2.1.
"Demand Registration" shall have the meaning ascribed to that
term in Section 2.1.
"Effectiveness Period" shall have the meaning ascribed to that
term in Section 2.1.
"Equity Investor" means Madison Dearborn Capital Partners III,
L.P.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC
thereunder.
"Holder" shall mean each of the Purchasers, for so long as the
Purchasers own any Registrable Securities, and their successors, assigns
and direct and indirect transferees who become registered owners of
Registrable Securities.
"Initial Public Equity Offering" means a primary underwritten
public offering (but excluding any offering pursuant to Form S-8 under
the Securities Act or any other publicly registered offering pursuant to
the Securities Act pertaining to an issuance of shares of Common Stock
or securities exercisable therefor under any benefit plan, employee
compensation plan, or employee or director stock purchase plan) of
Common Stock of the Company pursuant to an effective registration
statement under the Securities Act.
"Issue Date" means December 10, 1999.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions in The City of New York or at a place of payment
are authorized by law, regulation or executive order to remain closed.
"Lock Up Period" shall have the meaning ascribed to that term in
Section 2.1.
"Person" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government or agency or
political subdivision thereof.
"Piggy-Back Registration" shall have the meaning ascribed to that
term in Section 2.2.
"Postponement Period" shall have the meaning ascribed to that
term in Section 2.1.
"Preferred Stock" means, with respect to any Person, Capital
Stock of any class or classes (however designated) of such Person which
is preferred as to the payment of dividends or distributions, or as to
the distribution of assets upon any voluntary or involuntary liquidation
or dissolution of such Person, over Capital Stock of any other class of
such Person. With respect to the Company, the term "Preferred Stock"
shall include the Senior Preferred Stock.
"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
pursuant to the Securities Act), 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 any such
prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if
any, in such prospectus.
"Purchase Agreement" shall have the meaning ascribed to that term
in the preamble hereto.
"Purchased Securities" shall have the meaning ascribed to that
term in the preamble hereto.
"Purchasers" shall have the meaning ascribed to that term in the
preamble hereto.
"Registrable Securities" shall mean any of the Shares. As to any
particular Registrable Securities, once issued such securities shall
cease to be Registrable Securities when (a) a Registration Statement
with respect to the sale of such securities by the Holder thereof shall
have been declared effective under the Securities Act and such
securities shall have been disposed of by such Holder in accordance with
such Registration Statement, (b) such securities have been distributed
to the public pursuant to Rule 144 (or any successor provision)
promulgated under the Securities Act, (c) such securities shall have
been otherwise transferred and new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of such securities shall not require
registration or qualification under the Securities Act or any similar
state law then in force or (d) such securities shall have ceased to be
outstanding.
"Registration Expenses" shall mean all expenses incident to the
Company's performance of or compliance with this Agreement, including,
without limitation, all SEC and stock exchange or National Association
of Securities Dealers, Inc. registration and filing fees and expenses,
fees and expenses of compliance with securities or Blue Sky laws
(including, without limitation, in the event of an underwritten
offering, reasonable fees and disbursements of counsel for the
underwriters in connection with Blue Sky qualifications, if any, of the
Registrable Securities), rating agency fees, printing expenses,
messenger, telephone and delivery expenses, fees and disbursements of
counsel for the Company and all independent certified public
accountants, and, in the event of an underwritten offering, the fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities (but not including (i) any underwriting discounts or
commissions or transfer taxes, if any, attributable to the sale of
Registrable Securities by Holders of such Registrable Securities or (ii)
fees and expenses of counsel and/or experts for the Holders).
"Registration Statement" shall mean any registration statement of
the Company which covers any of the Registrable Securities pursuant to
the provisions of this Agreement and all amendments and supplements to
any such Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Requisite Shares" shall mean a number of Registrable Securities
equivalent to not less than 35% of the Registrable Securities
outstanding as of any date of determination.
"Rule 144" shall mean Rule 144 under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Rule 144A" shall mean Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"SEC" shall mean the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any
time after the execution of this Agreement such Commission is not
existing and performing the duties now assigned to it under the Exchange
Act, the body performing such duties at such time.
"Securities" shall mean the Senior Preferred Stock, Common Stock,
any preferred or common stock equivalents, participations or interests
and any options, warrants or securities convertible into or exercisable
or exchangeable for Senior Preferred Stock or Common Stock or any
preferred or common stock equivalents, participations or interests.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated by the SEC
thereunder.
"Senior Preferred Stock" shall have the meaning ascribed to that
term in the preamble hereto.
"Shares" shall mean (a) the Senior Preferred Stock sold to the
Purchasers pursuant to the Purchase Agreement, whether held by any of
them or any subsequent assignee or transferee and (b) any other
securities issued or issuable with respect to or in exchange for the
Senior Preferred Stock by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise.
"Voting Stock" shall mean any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the Board
of Directors, managers or trustees of any Person (irrespective of
whether or not, at the time, stock of any other class or classes shall
have, or might have, voting power by reason of the happening of any
contingency).
"Withdrawal Election" shall have the meaning ascribed to that
term in Section 2.3.
2. Registration Rights and Other Rights and Obligations of the
Holders.
2.1. Demand Registration. (a) Request for Registration. At any
time on or after the first year anniversary of the Issue Date, Holders owning,
individually or in the aggregate, at least the Requisite Shares may make up to
two written requests (a "Demand") for registration under the Securities Act of
their Registrable Securities (a "Demand Registration"). Any such Demand will
specify the number of Registrable Securities proposed to be sold and will also
specify the intended method of disposition thereof. Subject to the other
provisions of this Section 2.1, the Company shall give written notice of such
Demand within 10 days after the receipt thereof to all other Holders. Within 30
days after receipt of such notice by any Holder, such Holder may request in
writing that its Registrable Securities be included in such registration and the
Company shall include in the Demand Registration the Registrable Securities of
any such selling Holder requested to be so included. Each such request by such
other selling Holders shall specify the number of Registrable Securities
proposed to be sold and the intended method of disposition thereof. Upon a
Demand, the Company will (i) prepare, file and use its commercially reasonable
efforts to cause to become effective within 90 days of such Demand a
Registration Statement in respect of all the Registrable Securities which
Holders request for inclusion therein; provided that if such Demand occurs
during a Black Out Period or a period (not to exceed 180 days) during which the
Company is prohibited or restricted from issuing or selling Senior Preferred
Stock pursuant to any underwriting or purchase agreement relating to an
underwritten public offering of Senior Preferred Stock or securities convertible
into or exchangeable for Senior Preferred Stock under Rule 144A or registered
under the Securities Act or any agreement with a securityholder of the Company
exercising registration rights pursuant to an agreement in existence on the date
hereof (a "Lock Up Period"), the Company shall not be required to notify the
Holders of such Demand or file such Registration Statement prior to the end of
the Black Out Period or Lock Up Period, as the case may be, in which event, the
Company will use its commercially reasonable efforts to cause such Registration
Statement to become effective no later than 90 days after the end of the Black
Out Period or Lock Up Period, as the case may be, and (ii) keep such
Registration Statement effective for the shorter of (a) 180 days (the
"Effectiveness Period") and (b) such period of time as all of the Registrable
Securities included in such Registration Statement have been sold thereunder.
Notwithstanding anything set forth in the immediately preceding sentence, the
Company may (I) postpone the filing period, suspend the effectiveness of any
registration, suspend the use of any Prospectus and shall not be required to
amend or supplement the Registration Statement, any related Prospectus or any
document incorporated therein by reference (other than an effective registration
statement being used for an underwritten offering) in the event that, and for a
period, in the case of any particular Demand Registration, not to exceed an
aggregate of 90 days ("Black Out Period") (i) an event or circumstance occurs as
a result of which the Registration Statement, any related Prospectus or any
document incorporated therein by reference as then amended or supplemented
would, in the Company's good faith judgment, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and (ii)(A) the Company determines in its good faith
judgment that the disclosure of such event at such time would have a material
adverse effect on the business, operations or prospects of the Company or (B)
the disclosure otherwise relates to a material business transaction or any other
material matter, which has not yet been publicly disclosed; provided, further,
that, if the effectiveness of any Registration Statement is suspended as a
result of a Black Out Period, the Effectiveness Period shall be extended by the
number of days in any Black Out Period and (II) at any time prior to an Initial
Public Offering by the Company, postpone the filing of one Demand Registration,
by giving written notice thereof to all Holders, for a period not to exceed an
aggregate of 180 days ("Postponement Period"); provided, that at the end of the
Postponement Period the Company will use its commercially reasonable efforts to
cause a Registration Statement with respect to all Registrable Securities of
Holders electing to participate in such Demand Registration to become effective
within 90 days after the end of the Postponement Period.
In the event of the occurrence of any Black Out Period during an
Effectiveness Period or Lock Up Period, the Company will promptly notify the
Holders of Registrable Securities thereof in writing.
Upon a Demand, the Company may elect, at its option, to effect an
A/B exchange within the time periods referred to above, which shall be deemed to
satisfy the Company's obligations to effect a registration under this Agreement.
(b) Effective Registration. Except as specifically provided
herein, the Company is only required to effect two Demand Registrations under
this Agreement (whether or not all of the Holders of Registrable Securities
elect to participate in such Demand Registration on the basis set forth herein).
A registration will not be deemed to have been effected as a Demand
Registration, and thereby satisfy the obligation hereunder, unless it has been
declared effective by the SEC and the Company has complied in all material
respects with its obligations under this Agreement with respect thereto;
provided that if, after it has become effective, the offering of Registrable
Securities pursuant to such registration is or becomes the subject of any stop
order, injunction or other order or requirement of the SEC or any other
governmental or administrative agency, or if any court prevents or otherwise
limits the sale of Registrable Securities pursuant to the registration (for any
reason other than the act or omissions of the Holders) for the period of time
contemplated hereby, 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 requested pursuant to this Section
2.1 does not remain effective for the Effectiveness Period, then the Company
shall not be deemed to have effected a Demand Registration and its obligations
pursuant to this Section 2.1 will continue. The Holders of Registrable
Securities shall be permitted to withdraw all or any part of the Registrable
Securities from a Demand Registration at any time prior to the effective date of
such Demand Registration. If at any time a Registration Statement is filed
pursuant to a Demand Registration, and subsequently a sufficient number of the
Registrable Securities are withdrawn from the Demand Registration so that such
Registration Statement does not cover that number of Registrable Securities at
least equal to one-half of the Registrable Securities outstanding as of such
date, the Holders who have not withdrawn their Registrable Securities shall have
the opportunity to include an additional number of Registrable Securities in the
Demand Registration so that such Registration Statement covers that number of
Registrable Securities at least equal to one-half of the Registrable Securities
outstanding as of such date. If an additional number of Registrable Securities
is not so included, the Company may withdraw the Registration Statement. Such
withdrawn Registration Statement will not count as a Demand Registration and the
Company shall continue to be obligated to effect such registration pursuant to
this Section 2.1. Except as set forth in the last sentence of Section 2.1(c),
without the prior written consent of the Holders of the Requisite Shares no
other securityholder of the Company shall be permitted to include their
securities in a Demand Registration.
(c) Priority in Demand Registrations Pursuant to Section 2.1. If
a Demand Registration pursuant to this Section 2.1 involves an underwritten
offering and the lead managing underwriter advises the Company in writing that,
in its view, the number of Registrable Securities requested by the Holders to be
included in such registration, together with any other securities permitted to
be included in such registration exceeds the number which, in the view of such
lead managing underwriter, can be sold, the number of such Registrable
Securities to be included in such registration shall be allocated pro rata among
all requesting Holders on the basis of the relative number of Registrable
Securities then held by each such Holder (provided that any Registrable
Securities thereby allocated to any such Holder that exceed such Holder's
request shall be reallocated among the remaining requesting Holders in like
manner). In the event that the number of Registrable Securities requested to be
included in such registration is less than the number which, in the view of the
lead managing underwriter, can be sold, the Company may include in such
registration the Securities the Company proposes to sell up to the number of
Securities that, in the view of the lead managing underwriter, can be sold
without adversely affecting the success of the offering, including the price at
which the Registrable Securities can be sold.
(d) Selection of Underwriter. If the Holders so elect, the
offering of Registrable Securities pursuant to a Demand Registration shall be in
the form of an underwritten offering. The Holders of a majority of the
Registrable Securities to be sold in such Demand Registration shall select one
or more nationally recognized firms of investment bankers (to whom the Company
shall not have reasonably objected) to act as the 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.
(e) Expenses. The Company will pay all Registration Expenses in
connection with the registrations requested pursuant to Section 2.1(a). Each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to any registration statement requested pursuant to this
Section 2.1.
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 of any Securities (including,
but not limited to, an Initial Public Equity Offering) or for the account of any
of its respective securityholders of any Securities (other than (i) a
registration statement on Form S-4 or S-8 (or any substitute forms that may be
adopted by the SEC), (ii) a registration statement filed in connection with an
offer or offering of securities solely to the Company's existing securityholders
or (iii) a Demand Registration), then the Company shall give written notice of
such proposed filing to the Holders of Registrable Securities as soon as
practicable (but in no event less than 20 Business 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 of distribution thereof) (a
"Piggy-Back Registration"). The Company shall use its best efforts to cause the
managing underwriter or underwriters of such 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 securityholder included therein and to
permit the sale or other disposition of such Registrable Securities in
accordance with the intended method of distribution thereof; provided, however,
in no event shall the Company be required to reduce the number of securities
proposed to be sold by the Company or alter the terms of the securities proposed
to be sold by the Company in order to induce the managing underwriter or
underwriters to permit Registrable Securities to be included. 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 prior to the
effectiveness of the Registration Statement. The Company may withdraw a
Piggy-Back Registration at any time prior to the time it becomes effective;
provided that the Company shall give prompt notice thereof to participating
Holders. The Company will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 2.2,
and each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to a Registration Statement effected pursuant to
this Section 2.2.
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.
2.3. Reduction of Offering. If the lead managing underwriter of
any underwritten offering described in Section 2.2 has informed, in writing, the
Holders of the Registrable Securities requesting inclusion in such offering that
it is its view that the total number of securities which the Company, the
Holders 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, including the price at which such securities can
be sold, then: first, the securities other than Registrable Securities of the
Holders and securities of the Company included in such offering shall be reduced
in their entirety before any reduction of Registrable Securities; and second, to
the extent the reduction set forth in the immediately preceding clause is
insufficient to reduce the number of securities requested for inclusion in such
offering to a number, which, in the view of the lead managing underwriter, can
be sold without materially and adversely affecting the success of the offering,
the number of Registrable Securities to be offered for the account of such
Holders participating in such registration shall be reduced or limited pro rata
in proportion to the respective number of securities requested to be registered
to the extent necessary to reduce the total number of Registrable Securities
requested to be included in such offering to the number of securities, if any,
recommended by such lead managing underwriter. If a reduction in the Registrable
Securities pursuant to this paragraph would, in the judgment of the lead
managing underwriter, 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. In no event shall the Company be required to reduce the number of
securities to be sold by it in the offering.
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
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 (a "Withdrawal Election"); provided that a Withdrawal Election
shall be made prior to the effectiveness of the Registration Statement and shall
be irrevocable and, after making a Withdrawal Election, a Holder shall no longer
have any right to include Registrable Securities in the registration as to which
such Withdrawal Election was made.
2.4. Lock-Up of Holders. If the Company has complied with all of
its obligations with respect to a Demand Registration or a Piggy-Back
Registration that is a firm commitment underwritten public offering, all Holders
of Registrable Securities, upon request of the lead managing underwriter with
respect to such underwritten public offering, agree not to sell or otherwise
dispose of any Registrable Security owned by them for a period not to exceed 90
days from the consummation of such underwritten public offering; provided that
Registrable Securities which had been requested for inclusion in a Demand
Registration or a Piggy-Back Registration but which were not so included
pursuant to Section 2.1(c) or Section 2.3 shall only be subject to the
restriction on sale and disposition in this Section 2.4 for a period not to
exceed 60 days from the consummation of such underwritten public offering.
3. Registration Procedures.
In connection with the obligations of the Company with respect to
any Registration Statement pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:
(a) A reasonable period of time prior to the initial filing of a
Registration Statement or Prospectus and a reasonable period of time
prior to the filing of any amendment or supplement thereto, furnish to
the Holders of the Registrable Securities included in such
Registration Statement, and the managing underwriters, if any, copies
of all such documents proposed to be filed, which documents (other
than those incorporated or deemed to be incorporated by reference)
will be subject to the review of such Holders, and such underwriters,
if any, and use reasonable commercial efforts to cause the officers
and directors of the Company, counsel to the Company and independent
certified public accountants to the Company to respond to such
reasonable inquiries as shall be necessary, in the opinion of the
respective counsel to such Holders and such underwriters, to conduct a
reasonable investigation within the meaning of the Securities Act. The
Company shall not file any such Registration Statement or related
Prospectus or any amendments or supplements thereto to which the
Holders of a majority of the Registrable Securities included in such
Registration Statement shall reasonably object on a timely basis;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective
for the applicable time period required hereunder; cause the related
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
and the Exchange Act with respect to the disposition of all securities
covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or in
such Prospectus as so supplemented;
(c) Notify the Holders of Registrable Securities to be sold and
the managing underwriters, if any, promptly, and (if requested by any
such Person), confirm such notice in writing, (i)(A) when a Prospectus
or any Prospectus supplement or post-effective amendment is proposed
to be filed and (B) with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of
any request by the SEC or any other Federal or state governmental
authority for amendments or supplements to a Registration Statement or
related Prospectus or for additional information, (iii) of the
issuance by the SEC, any state securities commission, any other
governmental agency or any court of any stop order, order or
injunction suspending or enjoining the use of a Prospectus or the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, and (v) of the happening of any event or
information becoming known that makes any statement made in a
Registration Statement or related Prospectus untrue in any material
respect or that requires the making of any changes in such
Registration Statement or Prospectus so that, in the case of a
Registration Statement, 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, not misleading, and that in
the case of a Prospectus, 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, not misleading;
(d) Use its commercially reasonable efforts to avoid the issuance
of or, if issued, obtain the withdrawal of any order enjoining or
suspending the use of a Prospectus or the effectiveness of a
Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction described in
Section 3(h), at the earliest practicable moment;
(e) If requested by the lead managing underwriters, if any, (i)
promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters, if any,
reasonably believe should be included therein, and (ii) make all
required filings of such Prospectus supplement or such post-effective
amendment under the Securities Act as soon as practicable after the
Company has received notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment; provided,
however, that the Company shall not be required to take any action
pursuant to this Section 3(e) that would, in the opinion of counsel
for the Company, violate applicable law;
(f) Upon written request to the Company, furnish to each Holder
of Registrable Securities to be sold pursuant to a Registration
Statement and each managing underwriter, if any, without charge, at
least one conformed copy of such Registration Statement and each
amendment thereto, including financial statements and schedules, all
documents incorporated or deemed to be incorporated therein by
reference, and all exhibits to the extent requested (including those
previously furnished or incorporated by reference) as soon as
practicable after the filing of such documents with the SEC;
(g) Deliver to each Holder of Registrable Securities to be sold
pursuant to a Registration Statement, and the underwriters, if any,
without charge, as many copies of the Prospectus (including each form
of prospectus) and each amendment or supplement thereto as such
persons reasonably request; and the Company hereby consents to the use
of such Prospectus and each amendment or supplement thereto by each of
the selling Holders of Registrable Securities and the underwriters, if
any, in connection with the offering and sale of the Registrable
Securities covered by such Prospectus and any amendment or supplement
thereto;
(h) Prior to any public offering of Registrable Securities, use
its commercially reasonable efforts to register or qualify or
cooperate with the Holders of Registrable Securities to be sold, the
underwriters, if any, and their respective counsel in connection with
the registration or qualification (or exemption from such registration
or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as any
such Holder or underwriter reasonably requests in writing; keep each
such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept
effective hereunder and 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, however, that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction where it
is not then so qualified or (ii) take any action which would subject
it to general service of process or to taxation in any jurisdiction
where they are not so subject;
(i) In connection with any sale or transfer of Registrable
Securities that will result in such Securities no longer being
Registrable Securities, cooperate with the Holders thereof and the
managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold, which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The Depository Trust
Company, and to enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters, if any, or such Holders may request at least two
Business Days prior to any sale of Registrable Securities;
(j) Upon the occurrence of any event contemplated by Section
3(c)(v), as promptly as practicable, prepare a supplement or
amendment, including, if appropriate, a post-effective amendment, to
each Registration Statement or a supplement to the related Prospectus
or any document incorporated or deemed to be incorporated therein by
reference, and file any other required document so that, as thereafter
delivered, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(k) Enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings) and take all such other reasonable actions in connection
therewith (including those reasonably requested by the managing
underwriters, if any) in order to expedite or facilitate the
disposition of such Registrable Securities, and, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration: (i) make such
representations and warranties to the underwriters and selling
Holders, if any, with respect to the business of the Company and its
subsidiaries (including with respect to businesses or assets acquired
or to be acquired by any of them), and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested;
(ii) obtain opinions of 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, addressed
to each of the underwriters, and selling Holders, if any), covering
the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by
such underwriters or selling Holders; (iii) use their commercially
reasonable efforts to obtain customary "cold comfort" letters and
updates thereof 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 is, or is required to be, included in the Registration
Statement), addressed (where reasonably possible) to each of the
underwriters and selling Holders, if any, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings; (iv)
if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the
underwriters, if any, than those set forth in Section 4 hereof (or
such other provisions and procedures acceptable to the managing
underwriters, if any); and (v) deliver such documents and certificates
as may be reasonably requested by the managing underwriters, if any,
to evidence the continued validity of the representations and
warranties made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company;
(l) Make available for inspection by a representative of any
underwriter participating in any such disposition of Registrable
Securities, and any attorney, consultant or accountant retained by
such selling Holders or underwriter, at the offices where normally
kept, during reasonable business hours, all pertinent financial and
other records, corporate documents and properties of the Company and
its subsidiaries (including with respect to businesses and assets
acquired or to be acquired to the extent that such information is
available to the Company), and cause the officers, directors, agents
and employees of the Company and its subsidiaries (including with
respect to businesses and assets acquired or to be acquired to the
extent that such information is available to the Company) to supply
all information in each case reasonably requested by any such
representative, underwriter, attorney, consultant or accountant in
connection with such Registration Statement; provided, however, that
such Persons shall first agree in writing with the Company that any
information that is reasonably and in good faith designated by the
Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such Persons, unless (i)
disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law
(including any disclosure requirements pursuant to Federal securities
laws in connection with the filing of the Registration Statement or
the use of any Prospectus), (iii) such information becomes generally
available to the public other than as a result of a disclosure or
failure to safeguard such information by such Person or (iv) such
information becomes available to such Person from a source other than
the Company and its subsidiaries and such source is not bound by a
confidentiality agreement;
(m) Comply with all applicable rules and regulations of the SEC
and make generally available to their securityholders earnings
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 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) (i) commencing at
the end of any fiscal quarter in which Registrable Securities are sold
to underwriters in a firm commitment or reasonable efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter
after the effective date of a Registration Statement, which statement
shall cover said period, consistent with the requirements of Rule 158
under the Securities Act; and
(n) Cooperate with each seller of Registrable Securities covered
by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc.
The Company may require a Holder of Registrable Securities to be
included in a Registration Statement to furnish to the Company such information
regarding (i) the intended method of distribution of such Registrable Securities
(ii) such Holder and (iii) the Registrable Securities held by such Holder as is
required by law to be disclosed in such Registration Statement and the Company
may exclude from such Registration Statement the Registrable Securities of any
Holder who unreasonably fails to furnish such information within a reasonable
time after receiving such request. The Company shall not be required to provide
indemnification to any underwriter or any other person relating to information
referred to in clauses (i) and (ii) provided to the Company in writing
specifically for inclusion in such Registration Statement.
If any such Registration Statement refers to any Holder by name
or otherwise as the Holder of any securities of the Company, then such Holder
shall have the right to require (i) the insertion therein of language, in form
and substance reasonably satisfactory to such Holder, to the effect that the
holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such Holder
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such Holder by name or otherwise is not
required by the Securities Act, the deletion of the reference to such Holder in
any amendment or supplement to the Registration Statement filed or prepared
subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3(c)(ii), 3(c)(iii),
3(c)(iv) or 3(c)(v) hereof, such Holder will forthwith discontinue disposition
of such Registrable Securities covered by such Registration Statement or
Prospectus until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(j) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. If the Company shall give any such
notice, the Effectiveness Period shall be extended by the number of days during
such period from and including the date of the giving of such notice to and
including the date when each Holder of Registrable Securities covered by such
Registration Statement shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 3(j) hereof or (y) the Advice, and,
in either case, has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
Prospectus.
4. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Holder,
each underwriter who participates in an offering of Registrable Securities,
their respective Affiliates, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act and each of their respective directors, officers, employees and
agents, as follows:
(i) from and against any and all loss, liability, claim, damage
and expense whatsoever, joint or several, as incurred, arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto),
covering Registrable Securities, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) from and against any and all loss, liability, claim, damage
and expense whatsoever, joint or several, as incurred, to the extent
of the aggregate amount paid in settlement of any litigation (other
than amounts the Holders agree to pay in any written settlement
agreement), or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the prior written consent of the Company; and
(iii) from and against any and all expenses whatsoever, as
incurred (including reasonable fees and disbursements of one counsel
chosen by the Holders or any underwriter (except to the extent
otherwise expressly provided in Section 4(c) hereof)), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) of this Section
4(a);
provided that this indemnity does not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or omission
or alleged untrue statement or omission (i) made in reliance upon and in
conformity with written information furnished to the Company by a Holder or any
underwriter in writing expressly for use in the Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto) or
(ii) contained in any preliminary prospectus if such Holder or such underwriter
failed to send or deliver a copy of the Prospectus (in the form it was first
provided to such parties for confirmation of sales) to the Person asserting such
losses, claims, damages or liabilities on or prior to the delivery of written
confirmation of any sale of securities covered thereby to such Person in any
case where such delivery is required by the Securities Act and such Prospectus
would have corrected such untrue statement or omission. Any amounts advanced by
the Company to an indemnified party pursuant to this Section 4 as a result of
such losses shall be returned to the Company if it shall be finally determined
by such a court in a judgment not subject to appeal or final review that such
indemnified party was not entitled to indemnification by the Company.
(b) By accepting the benefits of this Agreement, each Holder
agrees, severally and not jointly, to indemnify and hold harmless the Company,
each underwriter who participates in an offering of Registrable Securities and
the other selling Holders and each of their respective directors, officers
(including each officer of the Company who signed the Registration Statement),
employees and agents and each Person, if any, who controls the Company, any
underwriter or any other selling Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
loss, liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 4(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such selling Holder expressly for use in
the Registration Statement (or any amendment thereto), or any such Prospectus
(or any amendment or supplement thereto). Notwithstanding the provisions of this
Section 4(b), a Holder of Registrable Securities shall not be required to pay
any indemnification in an amount in excess of the net proceeds received by such
Holder in the offering to which such Registration Statement relates.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers properly
served on such indemnified party, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability which it may have
other than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of any such action. If an
indemnifying party so elects within a reasonable time after receipt of such
notice, such indemnifying party, jointly with any other indemnifying party, may
assume the defense of such action with counsel chosen thereby and approved by
the indemnified parties defendant in such action; provided that if any such
indemnified party reasonably determines, based on advice of counsel, that there
may be legal defenses available to such indemnified party which are different
from or in addition to those available to such indemnifying party or that
representation of such indemnifying party and any indemnified party by the same
counsel would present a conflict of interest, then such indemnifying party or
parties shall not be entitled to assume such defense. If an indemnifying party
is not entitled to assume the defense of such action as a result of the proviso
to the preceding sentence, counsel for such indemnifying party shall be entitled
to conduct the defense of such indemnifying party and counsel for each
indemnified party or parties shall be entitled to conduct the defense of such
indemnified party or parties. If an indemnifying party assumes the defense of an
action in accordance with and as permitted by the provisions of this paragraph,
such indemnifying party shall not be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such action.
In no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel), separate
from its own counsel, for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
(d) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company and the Holders
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company and the Holders, as incurred; provided that, notwithstanding the
provisions of this Section 4(d), a Holder of Registrable Securities shall not be
required to contribute any amount in excess of the amount by which the net
proceeds received by such Holder in the offering to which such Registration
Statement relates exceeds the amount of any damages that such Holder has
otherwise been required to pay and 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 that was not guilty of such
fraudulent misrepresentation. As between the Company and the Holders, such
parties shall contribute to such aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of the Company,
on the one hand, and Holders, on the other hand, with respect to the statements
or omissions which resulted in such loss, liability, claim, damage or expense,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holders, on the other hand, 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 the Company, on the one hand, or by or on behalf of the Holders, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Holders of the Registrable Securities agree that it would not be just
and equitable if contribution pursuant to this Section 4 were to be determined
by pro rata allocation or by any other method of allocation that does not take
into account the relevant equitable considerations. For purposes of this Section
4, each Affiliate of each Holder, and each director, officer, employee, agent
and Person, if any, who controls a Holder or such Affiliate within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Holder, and each director of the
Company, each officer of the Company who signed the Registration Statement, 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 shall have the same
rights to contribution as the Company.
(e) The indemnity and contribution covenants contained in this
Section 4 shall remain operative and in full force and effect regardless of (i)
any investigation made by or on behalf of a Holder or any Person controlling a
Holder, (ii) any sale of any Registrable Securities pursuant to this Agreement
and receipt by the Holders of the proceeds thereof or (iii) any termination of
this Agreement for any reason, including after the initial filing of the
Registration Statement to which these indemnity and contribution covenants
relate
5. Rule 144A
The Company shall use its commercially reasonable efforts to file
the reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and, if at any time it is not required to file such
reports but in the past had been required to or did file such reports, it will,
upon the request of any Holder or beneficial owner of Registrable Securities,
make available other information as required by, and so long as necessary to
permit, sales of Registrable Securities pursuant to Rule 144A. Notwithstanding
the foregoing, nothing in this Section 5 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
6. Underwritten Registrations
No Person may participate in any underwritten registration
hereunder unless such Person (i) agrees to sell such Registrable Securities on
the basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
7. Miscellaneous
(a) Remedies. In the event of a breach by the Company or by a
Holder of any of its obligations under this Agreement, each Holder and the
Company, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company and each Holder agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach of any of the provisions of this Agreement and each hereby further agrees
that, in the event of any action for specific performance in respect of such
breach, it shall waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not enter into
any agreement that is inconsistent with the rights granted to the Holders and
indemnified persons in this Agreement or otherwise conflicts with the provisions
hereof. Without the written consent of the Holders of a majority of the
outstanding Shares, the Company shall not grant to any Person any rights which
conflict with or are inconsistent with the provisions of this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of the Holders
of not less than a majority of the then outstanding Shares. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other Holders may be given by Holders of a
majority of the Registrable Securities being sold by such Holders pursuant to
such Registration Statement; provided, however, that the provisions of this
sentence may not be amended, modified or supplemented except in accordance with
the provisions of the immediately preceding sentence. Notwithstanding the
foregoing, no amendment, modification, supplement, waiver or consent with
respect to Section 4 shall be made or given otherwise than with the prior
written consent of each Holder or former Holder affected thereby.
(d) Notices. All notices and other communications provided for
herein shall be made in writing by hand-delivery, next-day air courier,
certified first-class mail, return receipt requested, telex or telecopier:
(i) if to the Company, as provided in the Purchase Agreement,
(ii) if to the Purchasers, as provided in the Purchase Agreement,
or
(iii) if to any other Person who is then the registered Holder of
Shares or Registrable Securities, to the address of such Holder as it
appears in the register therefor of the Company.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given: when delivered by hand,
if personally delivered; one Business Day after being timely delivered to a
next-day air courier; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; and when receipt is
acknowledged by the recipient's telecopier machine, if telecopied.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each Holder of Shares. The Company
may not assign any of its rights hereunder without the prior written consent of
each Holder of Shares; provided that a merger or consolidation of the Company
with another Person pursuant to which the issuer or issuers of any securities
issued to Holders of Shares in connection with such merger or consolidation
becomes obligated under this Agreement shall not be considered an assignment.
Notwithstanding the foregoing, no successor or assignee of the Company shall
have any of the rights granted under this Agreement until such Person shall
acknowledge its rights and obligations hereunder by a signed written statement
of such person's acceptance of such rights and obligations. If any transferee of
any Holder shall acquire Shares in any manner, whether by operation of law or
otherwise, such Shares shall be held subject to all of the terms of this
Agreement, and by taking and holding such Shares such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement.
(g) Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK. THE COMPANY AND THE PURCHASERS HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND EACH IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS.
(h) Severability. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(i) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
All references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(j) Legends. Each Holder agrees that the following legend shall
be placed on certificates representing any Securities owned by them:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED
UNLESS SUCH TRANSFER COMPLIES WITH THE PROVISIONS OF A REGISTRATION
RIGHTS AGREEMENT DATED AS OF DECEMBER 10, 1999, A COPY OF WHICH IS ON
FILE WITH THE SECRETARY OF OUTSOURCING SOLUTIONS INC. AND IS AVAILABLE
WITHOUT CHARGE UPON WRITTEN REQUEST THEREFOR. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY
ALL OF THE PROVISIONS OF THE AFORESAID AGREEMENT.
The Company agrees to remove the legend on the Shares upon the resale of such
Shares in accordance with the terms of this Agreement.
(k) Notwithstanding anything to the contrary, nothing contained
in this Agreement shall affect, limit or impair the rights and remedies of
Heller Financial, Inc. in its capacity as (i) a lender to the Company or any
Subsidiary pursuant to any agreement under which the Company or any Subsidiary
has borrowed or may borrow money, and (ii) the beneficiary of any and all
agreements entered into by the Company or any Subsidiary for the benefit of
Heller Financial, Inc., as lender.
IN WITNESS WHEREOF, the parties have caused this Registration
Rights Agreement to be duly executed as of the date first written above.
OUTSOURCING SOLUTIONS INC.
By:/s/ Gary L. Weller
---------------------------------
Name: Gary L. Weller
Title: EVP
ARES LEVERAGED INVESTMENT FUND, L.P.
By: Ares Management, L.P.,
its General Partner
By: /s/ Jeffrey Serota
--------------------------------
Name: Jeffrey Serota
Title: Vice President
ARES LEVERAGED INVESTMENT FUND II,
L.P.
By: Ares Management II, L.P.,
its General Partner
By: /s/ Jeffrey Serota
--------------------------------
Name: Jeffrey Serota
Title: Vice President
DB CAPITAL INVESTORS, L.P.
By: DB Capital Partners, L.P.
By DB Capital Partners, Inc.
By: /s/ Tyler Zachem
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Name: Tyler Zachem
Title: Managing Director
FIRST UNION INVESTORS, INC.
By: /s/
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Name:
Title:
ABBOTT CAPITAL 1330 INVESTORS II,
L.P.
By: Abbott Capital 1330 GenPar II,
L.L.C.,
its General Partner
By: /s/ Thomas W. Hallagan
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Name: Thomas W. Hallagan
Title: Manager
ABBOTT CAPITAL PRIVATE EQUITY FUND
III, L.P.
By: Abbott Capital Management,
L.L.C.,
its General Partner
By: /s/ Raymond L. Held
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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
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Name: Burton M. Siegal
Title:Senior VP
HELLER FINANCIAL, INC.
By: /s/ Timothy P. Davitt
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Name: Timothy P. Davitt
Title: Vice President
MAGNETITE ASSET INVESTORS L.L.C.
By: Blackrock Financial Management,
Inc.
As Managing Member
By: /s/ Dennis M. Schaney
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Name: Dennis M. Schaney
Title: Managing Director