-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Wg2VPb10zPASWsJx5G73iuWb+mDQ0bkjHXgrpqj+jJ/X/dJ0AZgT7H0sfoRpzyRS owh9XuHn/aTIMwizD8GIWw== 0000950134-03-015386.txt : 20031114 0000950134-03-015386.hdr.sgml : 20031114 20031114125901 ACCESSION NUMBER: 0000950134-03-015386 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20031114 GROUP MEMBERS: QUESTOR SIDE-BY-SIDE PARTNERS II 3(C)(1) LP GROUP MEMBERS: QUESTOR SIDE-BY-SIDE PARTNERS II LP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AEGIS COMMUNICATIONS GROUP INC CENTRAL INDEX KEY: 0000778426 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 752050538 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-46288 FILM NUMBER: 031002351 BUSINESS ADDRESS: STREET 1: 7880 BENT BRANCH DRIVE STREET 2: SUITE 150 CITY: IRVING STATE: TX ZIP: 75063 BUSINESS PHONE: 9728301800 FORMER COMPANY: FORMER CONFORMED NAME: ATC COMMUNICATIONS GROUP INC DATE OF NAME CHANGE: 19960930 FORMER COMPANY: FORMER CONFORMED NAME: NRP INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: NATIONAL REFERENCE PUBLISHING INC DATE OF NAME CHANGE: 19880726 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: QUESTOR PARTNERS FUND II L P CENTRAL INDEX KEY: 0001101151 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 103 SPRINGER BLDG STREET 2: 3411 SILVERSIDE RD CITY: WILMINGTON STATE: DE ZIP: 19810 BUSINESS PHONE: 2482132200 MAIL ADDRESS: STREET 1: C/O ROBERT D DENIOUS ESQ STREET 2: 4000 TOWN CTR STE 530 CITY: SOUTHFIELD STATE: MI ZIP: 48075 SC 13D/A 1 d10492a9sc13dza.txt AMENDMENT NO. 9 TO SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 --------------- SCHEDULE 13D/A9 (RULE 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13D-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(a) (AMENDMENT NO. 9) AEGIS COMMUNICATIONS GROUP, INC. (Name of Issuer) COMMON STOCK, PAR VALUE $.01 PER SHARE (Title of Class of Securities) 00760B105 (CUSIP Number) Robert D. Denious 2000 Town Center Suite 2450 Southfield, MI 48075 Tel: (248) 213-2200 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) November 5, 2003 (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box: [ ] CUSIP NO. 00760B105 Page 2 of 10 Pages - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS. QUESTOR PARTNERS FUND II, L.P. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) OO - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 68,546,406 SHARES ----------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 3,678,691 OWNED BY EACH ----------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER REPORTING 68,546,406 PERSON ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH 3,678,691 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 72,225,098 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 60.4% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) PN - ------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! CUSIP NO. 00760B105 Page 3 of 10 Pages - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS. QUESTOR SIDE-BY-SIDE PARTNERS II, L.P. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) OO - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 2,619,900 SHARES ----------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 69,605,197 OWNED BY EACH ----------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER REPORTING 2,619,900 PERSON ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH 69,605,197 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 72,225,098 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 60.4% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) PN - ------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! CUSIP NO. 00760B105 Page 4 of 10 Pages - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS. QUESTOR SIDE-BY-SIDE PARTNERS II 3(C)(1), L.P. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) OO - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 1,058,791 SHARES ----------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 71,166,306 OWNED BY EACH ----------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER REPORTING 1,058,791 PERSON ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH 71,166,306 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 72,225,098 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 60.4% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) PN - ------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! ITEM 1. SECURITY AND ISSUER This Amendment No. 9 to the Statement on Schedule 13D filed with the U.S. Securities and Exchange Commission (the "Commission") on December 20, 1999 (as amended, the "Statement") is filed with respect to the Common Stock, par value $.01 per share (the "Common Stock"), of Aegis Communications Group, Inc., a Delaware corporation (the "Company"). The principal executive offices of the Company are located at 7880 Bent Branch Drive, Suite 150, Irving, Texas 75063. ITEM 4. PURPOSE OF TRANSACTION Item 4 is hereby amended and supplemented by adding the following thereto: On November 6, 2003, the Company filed a current report on Form 8-K announcing that it had, on November 5, 2003, terminated its previously announced Merger Agreement with AllServe Systems plc and signed and closed a transaction with Deutsche Bank AG--London acting through DB Advisors, LLC ("Deutsche Bank") and Essar Global Limited ("Essar") pursuant to a Note and Warrant Purchase Agreement and documents ancillary thereto. The November 6, 2003 Form 8-K indicates that pursuant to the Note and Warrant Purchase Agreement, Deutsche Bank and Essar, among other things, made an investment in the Company in the aggregate amount of $28.231 million in exchange for secured promissory notes and warrants to purchase up to 80% of the Common Stock of the Company. At the same time as the Note and Warrant Purchase Agreement was executed and consummated, and as part of the same transaction, the Filing Persons entered into a Stockholders Agreement with the Company, Deutsche Bank, Essar and Thayer Equity Investors, III, L.P. and certain of its affiliates ("Thayer"). Pursuant to the Stockholders Agreement, on the date thereof, among other things: o the Filing Persons converted all of their shares of Series E Preferred into 381,407 shares of Common Stock, and half of their Series F Preferred, or 23,375 shares, into 34,527,594 shares of Common Stock, all in accordance with the terms of the respective certificates of designation; o the prior Stockholders Agreement, dated December 10, 1999, among the Company, the Filing Persons and Thayer, was terminated; and o the Filing Persons waived certain of the rights to which they are entitled as holders of shares of Series F Preferred under the Series F Preferred Stock Certificate of Designation (the "Series F Certificate"). No funds were required or used in the completion of the conversions by the Filing Persons of their shares of Series E Preferred and Series F Preferred into shares of Common Stock. In connection with the transaction among the Company, Deutsche Bank and Essar, the Filing Persons executed a written consent in which they consented to the amendment of the Company's Amended and Restated Certificate of Incorporation to increase the Company's number of authorized shares of Common Stock from 200,000,000 to 800,000,000, and the amendment of the Series F Certificate to increase the number of shares of Common Stock into which each share of Series F Preferred is convertible (the "Consent"). The Company has informed the Filing Persons that these amendments to the Certificate of Incorporation and the Series F Certificate have been approved by the holders of the requisite majority of the shares entitled to vote thereon and that such amendments will occur following the Company's filing with the Commission and distribution to its stockholders of an information Page 5 of 10 Pages statement in accordance with Section 14(c) of the Securities Exchange Act of 1934, as amended, in the form provided by Schedule 14C promulgated pursuant thereto. After the amendment of the Series F Certificate, the Filing Persons' remaining 23,375 shares of Series F Preferred will be convertible into 46,910,503 shares of Common Stock (an increase from the 34,527,594 shares of Common Stock into which those shares of Series F Preferred are currently convertible), and the Filing Persons have committed in the Stockholders Agreement to convert these remaining shares of Series F Preferred into Common Stock following such amendments and the satisfaction of certain other conditions. Also in connection with the transaction, the five members of the Company's board of directors who were designees of the Filing Persons resigned from the board. The Company has informed the Filing Persons that the six directors on the Company's board of directors who were designees of Thayer have also resigned from the board, and that the vacancies on the board of directors were filled by the remaining director. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER Item 5(a) is hereby amended and restated in its entirety as follows: (a) As of November 5, 2003, the Filing Persons, the Questor Entities and the Questor Directors may be deemed to own beneficially (i) 34,527,594 shares of Common Stock issuable upon conversion of the 23,375 shares of Series F Preferred owned by the Filing Persons into Common Stock, subject to adjustment as provided in the Series F Certificate (following the effectiveness of the amendment to the Series F Certificate that is described above in response to Item 4, these shares of Series F Preferred will be convertible into 46,910,503 shares of Common Stock), (ii) 37,697,503 shares of Common Stock, and (iii) 84,571,359 shares of Common Stock beneficially owned by Thayer, Deutsche Bank and Essar as of such date (Thayer's, Deutsche Bank's and Essar's ownership being based on advice received from each of those persons). Each of the Filing Persons, the Questor Entities and the Questor Directors disclaims beneficial ownership of shares beneficially owned by Thayer, Deutsche Bank and Essar. As of November 5, 2003, (1) Questor Partners II is the direct beneficial owner of 22,184.425 shares of the Series F Preferred, which are convertible into 32,768,976 shares of Common Stock (44,521,177 shares after the above-described amendment to the Series F Certificate), (2) Questor SBS II is the direct beneficial owner of 847.907 shares of Series F Preferred, which are convertible into 1,252,457 shares of Common Stock (1,701,636 shares after the above-described amendment to the Series F Certificate), and (3) Questor 3(c)(1) is the direct beneficial owner of 342.6685 shares of Series F Preferred, which are convertible into 506,161 shares of Common Stock (687,689 shares after the above-described amendment to the Series F Certificate). As of November 5, 2003, (1) Questor Partners II is the direct beneficial owner of 35,777,430 shares of Common Stock, (2) Questor SBS II is the direct beneficial owner of 1,367,443 shares of Common Stock, and (3) Questor 3(c)(1) is the direct beneficial owner of 552,630 shares of Common Stock. Holders of shares of Series F Preferred have the right to convert those shares at any time prior to December 10, 2007, at the holder's option, into shares of Common Stock at the conversion price in effect at the time of conversion subject to adjustment from time to time in the event of stock dividends or splits, reclassifications, reorganizations, mergers or sales of assets that would otherwise dilute the number of shares of Common Stock into which the Series F Preferred are convertible. If not already converted, the Series F Preferred will be automatically converted into shares of Common Stock on December 10, 2007. As of November 5, 2003, the Conversion Price was approximately $.9805 and the maximum number of Page 6 of 10 Pages shares of Common Stock issuable upon conversion of the 23,375 shares of Series F Preferred into Common Stock was 34,527,594 shares. The Filing Parties have waived certain rights under the Series F Certificate including their rights to receive dividends, their liquidation preference, their redemption rights and certain adjustments to their conversion price. After the amendment of the Series F Certificate, the Filing Persons' remaining 23,375 shares of Series F Preferred will be convertible into 46,910,503 shares of Common Stock, and the Filing Persons have committed in a Stockholders Agreement to convert these remaining shares of Series F Preferred into Common Stock upon the satisfaction of certain conditions. The Questor Entities may be deemed to be acting as a group with regard to the Common Stock that is beneficially owned by the Filing Persons. The Questor Entities, Thayer, Deutsche Bank and Essar may be deemed to be acting as a group with regard to the Common Stock that is beneficially owned by each of the Filing Persons, Thayer, Deutsche Bank and Essar as a result of these persons being parties to the Stockholders Agreement described above in Item 4. As a result, the Common Stock reported as beneficially owned by Thayer, Deutsche Bank and Essar may be deemed to be beneficially owned by the Questor Entities and the Questor Directors. In light of the foregoing, based on the number of shares of Common Stock reported as outstanding as of July 25, 2003 by the Company in its proxy statement dated August 14, 2003, as updated to take into account the transactions of November 5, 2003 described herein, the Questor Entities and the Questor Directors may be deemed to own beneficially 83.6% of the Common Stock as calculated pursuant to Rule 13d-3(d)(1)(i) under the Securities Exchange Act of 1934, as amended. Each of the Filing Persons, the Questor Entities and the Questor Directors disclaims beneficial ownership of shares beneficially owned by Thayer, Deutsche Bank and Essar. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Item 6 is hereby amended and restated in its entirety as follows: As disclosed in Item 4 above, on November 5, 2003, the Filing Persons entered into a Stockholders Agreement, a copy of which is attached hereto as Exhibit 2, pursuant to which they agreed to convert all of their shares of Series E Preferred and half of their shares of Series F Preferred into Common Stock in accordance with the terms of the respective certificates of designation on November 5, 2003 and to convert the other half of their shares of Series F Preferred into Common Stock into 46,910,503 shares of Common Stock after the above-described amendment to the Series F Certificate and the satisfaction of certain other conditions. The Stockholders Agreement also provides that the Filing Persons may be required to satisfy a "right of first offer" to Deutsche Bank and Essar prior to a transfer of their shares to a third party. The Stockholders Agreement also provides that the Filing Persons are required to use their best efforts to nominate and elect and will vote all of their shares to elect and continue in office a board of directors consisting of ten members, three of whom shall be designated by Deutsche Bank, three of whom shall be designated by Essar, one of whom shall be the President and Chief Executive Officer of the Company and three of whom shall be independent of Deutsche Bank, Essar and the Company. The Common Stock held by the Filing Persons or to be obtained by the Filing Persons upon their conversion of their remaining shares of Series F Preferred are covered by a Registration Rights Agreement, dated as of November 5, 2003, by and among the Company, DB, Essar, the Filing Persons and certain other existing stockholders of the Company (the "Registration Rights Agreement"), which provides for registration of these shares for resale if conditions set forth in the Registration Rights Agreement are satisfied. Also pursuant to the Registration Rights Agreement, all of the rights of the Filing Parties and Thayer under the Series F Senior Voting Convertible Preferred Stock Purchase and Page 7 of 10 Pages Registration Rights Agreement, dated August 25, 1999, were terminated. A copy of the Registration Rights Agreement is attached hereto as Exhibit 3. As disclosed in Item 4 above, on November 5, 2003, the Filing Persons executed the Consent, a copy of which is attached hereto as Exhibit 4, in which they consented to the amendment of the Company's Amended and Restated Certificate of Incorporation to increase the Company's number of authorized shares of Common Stock from 200,000,000 to 800,000,000, and the amendment of the Series F Certificate to increase the number of shares of Common Stock into which each share of Series F Preferred is convertible. All descriptions of the Stockholders Agreement, the Registration Rights Agreement and the Consent contained herein are qualified in their entirety by reference to those documents, which are filed as Exhibits 2 through 4 hereto, respectively, and are incorporated herein by reference. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Item 7 is hereby amended and supplemented by adding the following thereto: 1. Joint Filing Agreement. 2. Stockholders Agreement by and among Aegis Communications Group, Inc., certain stockholders identified therein, Deutsche Bank AG--London acting through DB Advisors, LLC as investment advisor and Essar Global Limited, dated as of November 5, 2003. 3. Registration Rights Agreement, dated as of November 5, 2003, by and among the Company, Deutsche Bank AG--London acting through DB Advisors, LLC as investment advisor, Essar Global Limited, the Filing Persons and certain other existing stockholders of the Company. 4. Written Consent of the Majority of the Holders of Common Stock and Series F Preferred Stock of Aegis Communications Group, Inc., executed as of November 5, 2003. Page 8 of 10 Pages SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: November 14, 2003 QUESTOR PARTNERS FUND II, L.P. a Delaware limited partnership By: Questor General Partner II, L.P. its General Partner By: Questor Principals II, Inc. its General Partner By: /s/ Robert D. Denious -------------------------------------- Title: Managing Director QUESTOR SIDE-BY-SIDE PARTNERS II, L.P. a Delaware limited partnership By: Questor Principals II, Inc. Its General Partner By: /s/ Robert D. Denious ------------------------------------- Title: Managing Director QUESTOR SIDE-BY-SIDE PARTNERS II 3(C)(1), L.P. a Delaware limited partnership By: Questor Principals II, Inc. Its General Partner By: /s/ Robert D. Denious ------------------------------------- Title: Managing Director Page 9 of 10 Pages INDEX OF EXHIBITS 1. Joint Filing Agreement. 2. Stockholders Agreement by and among Aegis Communications Group, Inc., certain stockholders identified therein, Deutsche Bank AG--London acting through DB Advisors, LLC as investment advisor and Essar Global Limited, dated as of November 5, 2003. 3. Registration Rights Agreement, dated as of November 5, 2003, by and among the Company, Deutsche Bank AG--London acting through DB Advisors, LLC as investment advisor, Essar Global Limited, the Filing Persons and certain other existing stockholders of the Company. 4. Written Consent of the Majority of the Holders of Common Stock and Series F Preferred Stock of Aegis Communications Group, Inc., executed as of November 5, 2003. Page 10 of 10 Pages EX-1 3 d10492a9exv1.txt JOINT FILING AGREEMENT EXHIBIT 1 JOINT FILING AGREEMENT Pursuant to Rule 13d-1(k)(1)(iii) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned each agree that the Amendment No. 9 to the Statement on Schedule 13D to which this exhibit is attached is filed on behalf of each of them. Dated: November 14, 2003 QUESTOR PARTNERS FUND II, L.P. a Delaware limited partnership By: Questor General Partner II, L.P., its General Partner By: Questor Principals II, Inc. its General Partner By: /s/ Robert D. Denious ------------------------------------ Title: Managing Director QUESTOR SIDE-BY-SIDE PARTNERS II, L.P. a Delaware limited partnership By: Questor Principals II, Inc. its General Partner By: /s/ Robert D. Denious ------------------------------------ Title: Managing Director QUESTOR SIDE-BY-SIDE PARTNERS II 3(C)(1), L.P. a Delaware limited partnership By: Questor Principals II, Inc. its General Partner By: /s/ Robert D. Denious ------------------------------------ Title: Managing Director EX-2 4 d10492a9exv2.txt STOCKHOLDERS AGREEMENT EXHIBIT 2 EXECUTION COPY STOCKHOLDERS AGREEMENT BY AND AMONG AEGIS COMMUNICATIONS GROUP, INC., CERTAIN STOCKHOLDERS AS IDENTIFIED HEREIN, DEUTSCHE BANK AG -- LONDON ACTING THROUGH DB ADVISORS, LLC AS INVESTMENT ADVISOR, AND ESSAR GLOBAL LIMITED DATED AS OF NOVEMBER 5, 2003 TABLE OF CONTENTS
Page ---- 1. SALES TO THIRD PARTIES...................................................................................1 1.1 SALES TO THIRD PARTIES..........................................................................1 1.2 RIGHT OF FIRST OFFER............................................................................1 1.3 INVOLUNTARY TRANSFERS...........................................................................2 2. ELECTION OF DIRECTORS....................................................................................3 2.1 BOARD MAKE-UP...................................................................................3 2.2 IRREVOCABLE PROXY...............................................................................3 2.3 MAJOR DECISIONS.................................................................................4 3. STOCK CERTIFICATE LEGEND.................................................................................5 4. COVENANTS; REPRESENTATIONS AND WARRANTIES................................................................6 4.1 NO OTHER ARRANGEMENTS OR AGREEMENTS.............................................................6 4.2 ADDITIONAL REPRESENTATIONS AND WARRANTIES.......................................................7 4.3 AFFILIATE TRANSACTIONS..........................................................................7 4.4 PREFERRED STOCK CONVERSION......................................................................7 5. AMENDMENT AND MODIFICATION...............................................................................8 6. PARTIES..................................................................................................8 6.1 ASSIGNMENT BY THE COMPANY.......................................................................8 6.2 ASSIGNMENT GENERALLY............................................................................8 6.3 TERMINATION.....................................................................................8 6.4 AGREEMENTS TO BE BOUND..........................................................................9 7. RECAPITALIZATIONS, EXCHANGES, ETC........................................................................9 8. FURTHER ASSURANCES.......................................................................................9 9. GOVERNING LAW............................................................................................9
i 10. INVALIDITY OF PROVISION..................................................................................9 11. WAIVER..................................................................................................10 12. NOTICES.................................................................................................10 13. HEADINGS; EXECUTION IN COUNTERPART......................................................................11 14. COUNTERPARTS............................................................................................11 15. ENTIRE AGREEMENT........................................................................................11 16. INJUNCTIVE RELIEF.......................................................................................11 17. MISCELLANEOUS...........................................................................................12 18. DEFINED TERMS...........................................................................................12
ii This STOCKHOLDERS AGREEMENT (this "Agreement"), is made effective as of November 5, 2003, by and among Aegis Communications Group, Inc., a Delaware corporation (the "Company"), Questor Partners Fund II, L.P., a Delaware limited partnership ("Fund II"), Questor Side-by-Side Partners II, L.P., a Delaware limited partnership (the "Side-By-Side Fund"), Questor Side-by-Side Partners II 3(c)(1), L.P., a Delaware limited partnership (the "3(C)(1) Fund", and together with Fund II and the Side-by-Side Fund, "Questor"), Thayer Equity Investors III, L.P., a Delaware limited partnership ("Thayer Equity"), TC Co-Investors, LLC, a Delaware limited liability company ("TC Co-Investors", and together with Thayer Equity, "Thayer" and together with Questor, the "Existing Stockholders"), Deutsche Bank AG -- London acting through DB Advisors, LLC as investment advisor ("DB") and Essar Global Limited ("Essar") (DB and Essar, collectively, the "New Stockholders"). The Existing Stockholders and New Stockholders are herein referred to collectively as the "Stockholders." Capitalized terms used herein without definition are defined in Section 18. The parties hereto agree as follows: 1. SALES TO THIRD PARTIES. 1.1 SALES TO THIRD PARTIES. Any Stockholder may Transfer all or a portion of its Equity Securities to a third party, provided that such Transfer is made in compliance with the provisions of Section 1.2 (Right of First Offer) and Section 6.4 (Agreements to Be Bound). Any Stockholder may Transfer all or a portion of its Equity Securities to an Affiliate, provided that such Transfer is made in compliance with Section 6.4 (Agreements to Be Bound). For the purposes of Section 1.2, a Transfer to a "third party" shall not include a Transfer to any New Stockholders Assignee or Existing Stockholders Assignee or a Transfer in a Public Sale (it being understood that there shall be no restriction on any Transfer in a Public Sale). 1.2 RIGHT OF FIRST OFFER. (a) PROCEDURE. If any Existing Stockholder (the "Selling Stockholder") desires to Transfer any Equity Securities (other than any Transfers referred to in the second or final sentence of Section 1.1), then prior to Transferring such Equity Securities to any third party or parties, the Selling Stockholder shall deliver to each of the New Stockholders a letter (the "Sale Notice") signed by it setting forth: (i) the number of Equity Securities such Selling Stockholder wishes to Transfer; (ii) the material terms and conditions on which such Selling Stockholder wishes to Transfer such shares, including, without limitation, the purchase price per security of Equity Securities; and (iii) such Selling Stockholder's offer (irrevocable by its terms for 15 days following receipt) to Transfer to the New Stockholders all (but not less than all) of such Equity Securities, for a purchase price and on the other terms and conditions set forth in subparagraph (ii) of this Section 1.2(a). Within 15 days of receipt of the Sale Notice, the New Stockholders may agree to purchase in the aggregate all of the Equity Securities covered by the Sale Notice, and (A) individually, that portion of such Equity Securities offered by the Selling Stockholder equal to their pro rata interest in the Company relative to each other (based on the percentage of outstanding Common Stock Equivalents owned by each of them on the date of the Sale Notice), (B) such other portion of such Equity Securities as the New Stockholders may agree upon or (C) in the event either of the New Stockholders does not exercise such right, all of the Equity Securities offered to such declining New Stockholder by the Selling Stockholder in amounts determined pursuant to subclause (A) or (B) above without regard to such declining New Stockholders, by delivering written notice to such effect to the Selling Stockholder setting forth closing arrangements and a closing date not less than 30 nor more than 90 days following the delivery of such notice (or such later date as is necessary to obtain all requisite governmental and regulatory approvals and consents). (b) EFFECTING SALES. If, upon the expiration of 15 days following receipt by the New Stockholders of the Sale Notice, none of the New Stockholders shall have agreed to purchase all of the Equity Securities covered by the Sale Notice, the Selling Stockholder may sell to a third party or parties all, but not less than all, of the Equity Securities covered by the Sale Notice for at least 95% of the price and upon substantially the same other terms and conditions as contained in the Sale Notice; provided that the Selling Stockholder and the third party execute a binding purchase agreement (subject to customary closing conditions) within 90 days after the expiration of such 15 day period and consummate the closing thereunder within 120 days (or such later date as is necessary to obtain all requisite governmental and regulatory approvals and consents) from the execution of the binding purchase agreement. If the New Stockholders shall have agreed to purchase the Equity Securities covered by the Sale Notice, then the sale of such Equity Securities shall be consummated as soon as practicable after the delivery of a notice of acceptance by the Selling Stockholder, but in any event within 90 days of the delivery of the Sale Notice (or such later date as is necessary to obtain all requisite governmental and regulatory approvals and consents). The New Stockholders shall have the right to assign to one or more New Stockholders Assignees all or any of their rights to purchase Equity Securities pursuant to this Section 1.2. (c) Notwithstanding anything to the contrary herein, the rights granted to and obligations imposed on the New Stockholders and the New Stockholders Assignees, on the one hand, and the Existing Stockholders and the Existing Stockholders Assignees, on the other hand, pursuant to this Section 1.2 shall terminate upon the third anniversary of the date of this Agreement. (d) This Section 1.2 shall apply mutatis mutandis hereto, as if one New Stockholder, on the one hand, and the other New Stockholder, on the other hand, were the Selling Stockholder and the New Stockholders, respectively; provided, that for the avoidance of doubt, the New Stockholder that is a Selling Stockholder shall be deemed to have declined its own offer for purposes of Section 1.2(a). 1.3 INVOLUNTARY TRANSFERS. Any transfer of title or beneficial ownership of Equity Securities upon default, foreclosure, forfeit, divorce, court order or otherwise than by a voluntary decision on the part of a Stockholder (each, an "Involuntary Transfer") shall be void unless the Stockholder complies with this Section 1.3 and enables the Company to exercise in full its rights hereunder. Upon any Involuntary Transfer, the Company 2 shall have the right to purchase such Equity Securities pursuant to this Section 1.3 and the person or entity to whom such Equity Securities have been Transferred (the "Involuntary Transferee") shall have the obligation to sell such Equity Securities in accordance with this Section 1.3. Upon the Involuntary Transfer of any Equity Securities, such Stockholder shall promptly (but in no event later than two days after such Involuntary Transfer) furnish written notice (the "Notice") to the Company indicating that the Involuntary Transfer has occurred, specifying the name of the Involuntary Transferee, giving a detailed description of the circumstances giving rise to, and stating the legal basis for, the Involuntary Transfer. Upon the receipt of the Notice, and for 60 days thereafter, the Company shall have the right to purchase, and upon exercise of such right the Involuntary Transferee shall have the obligation to sell, all (but not less than all) of the Equity Securities acquired by the Involuntary Transferee for a purchase price equal to the Market Value of such Equity Securities. 2. ELECTION OF DIRECTORS. 2.1 BOARD MAKE-UP. (a) Each Stockholder agrees that from and after the Closing such Stockholder will use his, her or its best efforts to nominate and elect and will vote all of the Equity Securities owned or held of record by him, her or it that have voting rights to elect and, thereafter for such period, to continue in office a Board consisting of ten members, three of whom shall be designated by DB (the "DB Designees"), three of whom shall be designated by Essar (the "Essar Designees"), one of whom shall be the President and Chief Executive Officer and three of whom shall be independent of DB, Essar and the Company. The persons designated pursuant to this Section 2.1 by DB and Essar may be changed from time to time by DB and Essar, respectively. If the directors are to be elected in staggered terms, the number of nominees designated by DB and Essar for each such term shall equal the total number of DB Designees or Essar Designees, respectively, divided by the number of such terms and rounded up to the nearest whole number. (b) The number of DB Designees and Essar Designees will be subject to reduction as provided in this Section 2.1(b). With respect to DB or Essar, respectively, upon the occurrence of (i) the First Break Point with respect to DB or Essar, as the case may be, the number of DB Designees or Essar Designees, respectively, will be reduced to two such designees, (ii) the Second Break Point with respect to DB or Essar, as the case may be, the number of DB Designees or Essar Designees, respectively, will be reduced to one such designee and (iii) the Third Break Point with respect to DB or Essar, as the case may be, the number of DB Designees or Essar Designees, respectively, will be reduced to zero such designees. As soon as practicable after the occurrence of any reduction in the number of DB Designees or Essar Designees, respectively, pursuant to clauses (i), (ii) or (iii) in the immediately preceding sentence, DB or Essar, respectively, shall use reasonable best efforts to cause the resignation of the number of DB Designee(s) or Essar Designee(s), respectively, in excess of the number of DB Designees or Essar Designees, respectively, that it is entitled to designate pursuant to this Section 2.1(b). For the avoidance of doubt, except as explicitly indicated in this Section 2.1(b), Section 2.1(a) shall remain in full force, including the obligations of each party to vote for the directors that such other party is entitled to designate. 2.2 IRREVOCABLE PROXY. In order to effectuate Section 2.1 and, in addition to and not in lieu of Section 2.1, each Stockholder hereby grants to the Secretary of the 3 Company then in office an irrevocable proxy solely for the purpose of voting all of the Equity Securities that have voting rights and owned by the grantor of the proxy for the election of directors nominated only in accordance with Section 2.1. 2.3 MAJOR DECISIONS. (a) Each Stockholder agrees that from and after the Closing such Stockholder will use his, her or its best efforts, and, where applicable, will vote all of the Equity Securities owned or held of record by him, her or it that have voting rights, to cause the By-laws of the Company to require that (i) at all meetings of the Board a majority of the number of directors shall constitute a quorum for the transaction of business; provided that such majority of directors include at least one independent director (so long as there is more than one independent director serving on the board), at least one DB Designee and at least one Essar Designee unless and until the Third Break Point occurs with respect to DB or Essar, as the case may be, (ii) any committee of the Board be constituted so that the number of DB Designees and Essar Designees on any such committee be as nearly as possible in the same proportion as the number of DB Designees and Essar Designees on the entire Board unless prohibited by applicable law or listing standards; provided that any committee of the Board shall at all times have a minimum of one DB Designee and one Essar Designee, unless and until the Third Break Point occurs with respect to DB or Essar, as the case may be and (iii) any Major Decision (as defined below) be approved by the affirmative vote of not less than three-fourths of the directors then serving on the Board; provided that, unless and until the First Break Point occurs, such Major Decision also be approved by each of at least one DB Designee and at least one Essar Designee. (b) The term "Major Decision" means any decision by the Board with respect to any of the following matters: (i) issuing any shares or any security, including any indebtedness, convertible into shares, or any other form of equity in the Company or any subsidiary of the Company, other than (A) granting options to directors or employees of the Company pursuant to any incentive or other benefit plan adopted by the Board, (B) issuing shares of Common Stock pursuant to the exercise of such options or any other securities outstanding on the date hereof and (C) issuing shares of Common Stock or any security, including any indebtedness, convertible into shares of Common Stock, or any other form of equity in the Company, in one or more offerings (excluding any issuances referred to in (A) or (B) above); (ii) adoption of any stock-based employee benefit plan; (iii) incurring indebtedness or entering into guarantees for borrowed money (excluding trade payables incurred in the ordinary course of business) in excess of $2,500,000 in any twelve consecutive month period, provided, however, that the Board may approve pursuant to this Section 2.3(b)(iii) a revolving credit or similar borrowing facility together with subsequent draw-downs under such facility without obtaining separate Board approval for each such draw-down; 4 (iv) selling, leasing, pledging or granting a security interest or encumbrance in all or substantially all of the Company's or any subsidiary of the Company's assets, except in connection with the incurrence of indebtedness for borrowed money that does not involve a Major Decision under the preceding paragraph; (v) acquiring (whether through an asset purchase, merger, equity purchase or otherwise) any assets (excluding acquisitions of raw materials and supplies in the ordinary course of business) having a value, individually or in the aggregate for any series of related transactions, in excess of $2,000,000; (vi) selling or otherwise disposing of any assets (excluding sales or other dispositions of inventory in the ordinary course of business) having a value, individually or in the aggregate for any series of related transactions, in excess of $2,000,000; (vii) amending the By-laws or the Certificate of Incorporation of the Company; (viii) any Change in Control Transaction; (ix) executing or delivering any assignment for the benefit of creditors of the Company; (x) filing any voluntary petition in bankruptcy or receivership with respect to the Company; (xi) taking any action while there is a vacancy on the Board, including without limitation the filling of such vacancy except in accordance with the terms of this Agreement; or (xii) changing the size or composition of the Board except in accordance with this Agreement. 3. STOCK CERTIFICATE LEGEND. A copy of this Agreement shall be filed with the Secretary of the Company and kept with the records of the Company. Each certificate representing shares of Common Stock owned by the Stockholders shall bear upon its face the following legends, as appropriate: (i) "THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS AND UNTIL REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS, IN THE OPINION OF COUNSEL TO THE STOCKHOLDER, 5 WHICH COUNSEL MUST BE, AND THE FORM AND SUBSTANCE OF WHICH OPINION ARE, REASONABLY SATISFACTORY TO THE ISSUER, SUCH OFFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION IS EXEMPT FROM REGISTRATION OR IS OTHERWISE IN COMPLIANCE WITH THE ACT AND SUCH LAWS." (ii) "THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND OTHER CONDITIONS, AS SPECIFIED IN THE STOCKHOLDERS' AGREEMENT OF THE ISSUER DATED AS OF NOVEMBER 5, 2003 (THE "STOCKHOLDERS' AGREEMENT"), COPIES OF WHICH ARE ON FILE AT THE OFFICE OF THE ISSUER AND WILL BE FURNISHED WITHOUT CHARGE TO THE HOLDER OF SUCH SHARES UPON WRITTEN REQUEST AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS, IN THE OPINION OF COUNSEL TO THE STOCKHOLDER, WHICH COUNSEL MUST BE, AND THE FORM AND SUBSTANCE OF SUCH OPINION ARE, REASONABLY SATISFACTORY TO THE ISSUER, SUCH OFFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION IS IN COMPLIANCE WITH THE STOCKHOLDERS' AGREEMENT." In addition, certificates representing shares of Common Stock owned by residents of certain states shall bear any legends required by the laws of such states. All Stockholders shall be bound by the requirements of such legends. 4. COVENANTS; REPRESENTATIONS AND WARRANTIES. 4.1 NO OTHER ARRANGEMENTS OR AGREEMENTS. Each Stockholder hereby represents and warrants to the Company and to each other Stockholder that he or she has not entered into or agreed to be bound by any other arrangements or agreements of any kind that conflict with this Agreement. Each Stockholder agrees that, except as expressly permitted under this Agreement, he, she or it will not enter into any such other arrangements or agreements as he, she or it has represented and warranted to above with any other party as long as any of the terms of this Agreement, the Note and Warrant Purchase Agreement and the Registration Rights Agreement remain in effect. Upon the execution of this Agreement, each of the Stockholders and Voting Agreement dated as of August 25, 1999 among Questor and the stockholders listed on Schedule A thereto and the Stockholders Agreement dated December 10, 1999 among Questor, Thayer and the Company shall terminate and have no further force and effect whatsoever. 6 4.2 ADDITIONAL REPRESENTATIONS AND WARRANTIES. (a) Each Stockholder represents and warrants to the Company and each other Stockholder that: (i) such Stockholder has the power, authority and capacity (or, in the case of any Stockholder that is a corporation, trust or limited partnership, all corporate, trust or limited partnership power and authority, as the case may be) to execute, deliver and perform this Agreement; (ii) in the case of a Stockholder that is a corporation, trust or limited partnership, the execution, delivery and performance of this Agreement by such Stockholder has been duly and validly authorized and approved by all necessary corporate, trust or limited partnership action, as the case may be; (iii) this Agreement has been duly and validly executed and delivered by such Stockholder and constitutes a valid and legally binding obligation of such Stockholder, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to creditors' rights generally and general principles of equity; and (iv) the execution, delivery and performance of this Agreement by such Stockholder does not and will not violate the terms of or result in the acceleration of any obligation under (A) any material contract, commitment or other material instrument to which such Stockholder is a party or by which such Stockholder is bound or (B) in the case of a Stockholder that is a corporation, trust or limited partnership, the certificate of incorporation, certificate of limited partnership, by-laws, limited partnership agreement or other organizational documents, as the case may be. 4.3 AFFILIATE TRANSACTIONS. Each of the New Stockholders hereby agrees not to, and to cause each of its Affiliates not to, engage in any transaction with the Company or any subsidiary or Affiliate of the Company unless each such transaction is on terms that could be obtained on an arm's length, commercially reasonable basis from unrelated parties. 4.4 PREFERRED STOCK CONVERSION. (a) As of the date hereof, Questor agrees to and hereby does convert (i) 9,058.42 shares of Series E Preferred Stock of the Company, representing all of its Series E Preferred Stock immediately prior to such conversion, into 381,407.11 shares of Common Stock of the Company in accordance with the conversion rate set forth in the certificate of designation governing the Series E Preferred Stock and (ii) 23,375 shares of Series F Preferred Stock of the Company, representing 50% of Questor's Series F Preferred Stock immediately prior to such conversion, into 34,527,594.305 shares of Common Stock of the Company in accordance with the conversion rate set forth in the certificate of designation governing the Series F Preferred Stock. As of the Subsequent Closing Date (as defined in the Purchase Agreement) Questor agrees to and will convert its remaining 23,375 shares of Series F Preferred Stock of the Company into 46,910,503 shares of Common Stock of the Company in accordance with the conversion rate set forth in the then-effective certificate of designation governing the Series F Preferred Stock, subject to completion of the Preferred Stock Amendment (as defined in the Purchase Agreement) and the satisfaction of the Thayer Condition (as defined in the Purchase Agreement). 7 (b) Questor hereby waives all of its rights under the certificate of designations of the Series F Preferred Stock other than the rights set forth in Sections 6(a), 7(a) through (c), 7(e), 7(f), 7(i) through (j), and 7(p) through (t). The Company hereby agrees with Questor to complete and cause to become effective the Preferred Stock Amendment (as defined in the Purchase Agreement). Thayer hereby agrees with Questor to cause the Thayer Condition (as defined in the Purchase Agreement) to be satisfied. If the Company changes (or establishes a record date for changing) the number of shares of Common Stock issued and outstanding prior to the Subsequent Closing Date (as defined in the Purchase Agreement) as a result of a stock split, stock dividend, recapitalization, subdivision, reclassification, combination, exchange of shares or similar transaction with respect to the outstanding shares of Common Stock, then the number of shares into which the Series F Preferred (as defined in the Purchase Agreement) shall be convertible pursuant to the Preferred Stock Amendment shall be appropriately adjusted to preserve the percentage ownership of the Common Stock that the holders of the Series F Preferred would otherwise obtain if the Preferred Stock Amendment were effected and the Series F Preferred outstanding immediately after the Closing were converted on the date hereof. 5. AMENDMENT AND MODIFICATION. This Agreement may not be amended, modified or supplemented except by a written instrument signed by each of the parties hereto and, in the case of an amendment, modification or supplement that would materially and adversely affect any other Stockholder, any such other Stockholder. The Company shall notify all Stockholders promptly after any such amendment, modification or supplement shall have taken effect. 6. PARTIES. 6.1 ASSIGNMENT BY THE COMPANY. If the Company has not exercised in full its right to purchase Equity Securities pursuant to Section 1.3 within 30 days of receipt by the Company of the Notice giving rise to such right, then the New Stockholders (other than any New Stockholders subject to such Involuntary Transfer) shall have the right to require the Company to assign to such New Stockholders such right to purchase those Equity Securities not being purchased by the Company. The New Stockholders shall have the right to assign to one or more of the New Stockholders Parties all or any of their rights to purchase Equity Securities pursuant to this Section 6.1. 6.2 ASSIGNMENT GENERALLY. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns, provided that the Company may not assign any of its rights or obligations hereunder without the consent of the New Stockholders and provided, further, that no Stockholder may assign any of its rights or obligations hereunder without the prior written consent of the New Stockholders, unless such assignment is in connection with a Transfer explicitly permitted by this Agreement and, prior to such assignment, such assignee complies with the requirements of Section 6.4. 6.3 TERMINATION. Any party to, or person who is subject to, this Agreement which ceases to own Equity Securities or any interest therein, shall cease to be a party to, or person who is subject to, this Agreement and thereafter shall have no rights or obligations hereunder, provided, however, that a Transfer of Equity Securities not explicitly 8 permitted under this Agreement shall not relieve a Stockholder of any of his or her obligations hereunder. Notwithstanding the foregoing, in connection with a Transfer to an Affiliate explicitly permitted by this Agreement, prior to any such Person ceasing to be an Affiliate of the Stockholder from whom such Person acquired its Equity Securities, such Person shall be obligated to transfer such Equity Securities back to such original Stockholder and such original Stockholder shall thereupon again be subject to this Agreement. Notwithstanding any other provision in this Agreement, this Agreement shall terminate and be of no further force or effect at such time as each of the New Stockholders Parties beneficially own less than 5% of the outstanding Equity Securities. 6.4 AGREEMENTS TO BE BOUND. Notwithstanding anything to the contrary contained in this Agreement, any Transfer of Equity Securities by a Stockholder (other than pursuant to a Public Sale) shall be permitted under the terms of this Agreement only if the transferee of such Stockholder shall agree in writing to be bound by the terms and conditions of this Agreement pursuant to an instrument of assumption reasonably satisfactory in substance and form to the New Stockholders, and, in the case of a transferee who is an individual and who resides in a state with a community property system, such transferee causes his or her spouse, if any, to execute a Spousal Waiver in the form of Exhibit A attached hereto. Upon the execution of the instrument of assumption by such transferee and, if applicable, the Spousal Waiver by the spouse of such transferee, such transferee shall have the rights and be subject to all of the restrictions and obligations of his or her transferor hereunder. 7. RECAPITALIZATIONS, EXCHANGES, ETC. Except as otherwise provided herein, the provisions of this Agreement shall apply to the full extent set forth herein with respect to (A) the Equity Securities and (B) any and all shares of capital stock of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for, or in substitution for the Equity Securities by reason of any stock dividend, split, reverse split, combination, recapitalization, reclassification, merger, consolidation or otherwise. All share numbers and percentages shall be proportionately adjusted to reflect any stock split, stock dividend or other subdivision or combination effected after the date hereof. Except as otherwise provided herein, this Agreement is not intended to confer upon any person, except for the parties hereto, any rights or remedies hereunder. 8. FURTHER ASSURANCES. Each party hereto shall do and perform or cause to be done and performed all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments and documents as any other party hereto or person subject hereto may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby. 9. GOVERNING LAW. This Agreement and the rights and obligations of the parties hereunder and the persons subject hereto shall be governed by, and construed and interpreted in accordance with, the laws of the State of Delaware, without giving effect to the choice of law principles thereof. 10. INVALIDITY OF PROVISION. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability 9 of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other jurisdiction. 11. WAIVER. Waiver by any party hereto of any breach or default by the other party of any of the terms of this Agreement shall not operate as a waiver of any other breach or default, whether similar to or different from the breach or default waived. No waiver of any provision of this Agreement shall be implied from any course of dealing between the parties hereto or from any failure by either party to assert its or his or her rights hereunder on any occasion or series of occasions. 12. NOTICES. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (A) delivered personally, (B) mailed, certified or registered mail with postage prepaid, (C) sent by next-day or overnight mail or delivery or (D) sent by fax, as follows (or to such other address as the party entitled to notice shall hereafter designate in accordance with the terms hereof): (i) If to the Company, to it at: Aegis Communications Group, Inc. 7880 Bent Branch Drive Suite 150 Irving, Texas 75063 Fax: (972) 868-0396 Attention: Chief Executive Officer with a copy to Questor and Thayer at their addresses set forth below. (ii) If to Thayer, to it at: Thayer Capital Management Partners 1455 Pennsylvania Avenue, N.W. Suite 350 Washington, D.C. Fax: (202) 371-0391 Attention: (iii) If to Questor, to it at: c/o Organization Services, Inc. 3411 Silverside Road Wilmington, Delaware 19810 Fax: (302) 478-3667 Attention: Gilbert Warren With a copy to: Questor Management Company 10 4000 Town Center Suite 530 Southfield, Michigan 48075 Fax: (248) 213-2200 Attention: President (iv) if to the New Stockholders: DB Advisors, LLC 280 Park Avenue, 9th Floor New York, NY 10017 Facsimile: Attention: Essar Global Limited 145 East 48th Street (PH) New York, NY 10017 Facsimile: (212) 758-5860 Attention: All such notices, requests, demands, waivers and other communications shall be deemed to have been received (A) if by personal delivery on the day after such delivery, (B) if by certified or registered mail, on the fifth business day after the mailing thereof, (C) if by next-day or overnight mail or delivery, on the day delivered, or (D) if by fax, on the next day following the day on which such fax was sent, provided that a copy is also sent by certified or registered mail. 13. HEADINGS; EXECUTION IN COUNTERPART. The headings to sections in this Agreement are for the convenience of the parties only and shall not control or affect the meaning or construction of any provision hereof. 14. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 15. ENTIRE AGREEMENT. This Agreement, the Note and Warrant Purchase Agreement and the Registration Rights Agreement constitute the entire agreement and understanding of the parties hereto with respect to the matters referred to herein. This Agreement and the agreements referred to in the preceding sentence supersede all prior agreements and understandings among the parties with respect to such matters. 16. INJUNCTIVE RELIEF. The parties hereto agree that the Company and the Stockholders will be irreparably damaged in the event this Agreement is not specifically enforced. Each of the parties therefore agrees that in the event of a breach of any provision of this Agreement, the aggrieved party may elect to institute and prosecute proceedings in any court of competent jurisdiction to enforce specific performance or to enjoin the continuing breach of this Agreement. Such remedies shall be cumulative and not exclusive, and shall be in addition to any other remedy which the Company or any Stockholder may have. Each Stockholder hereby 11 irrevocably submits to the non-exclusive jurisdiction of the state and federal courts in New York for the purposes of any suit, action or other proceeding arising out of or based upon this Agreement or the subject matter hereof. Each Stockholder hereby consents to service of process made in accordance with Section 12. 17. MISCELLANEOUS. All references in this Agreement to Sections of or Rules under the Securities Act or the Exchange Act are intended to include, and shall be deemed to include, references to all successor Sections and Rules which are intended to replace the Sections and Rules herein referenced. 18. DEFINED TERMS. As used in this Agreement, the following terms shall have the meanings ascribed to them below: "Affiliate" means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified, including, without limitation, with regard to the New Stockholders or the Existing Stockholders, any partner or member of the New Stockholders or the Existing Stockholders, respectively; provided that no Person shall be deemed to be an Affiliate of another Person solely as a result of this Agreement, the Note and Warrant Purchase Agreement and the Registration Rights Agreement or the other agreements contemplated thereby, or solely as a result of the ownership of Common Stock Equivalents. "Beneficially own" has the meaning given in Rule 13d-3 under the Exchange Act. "Board" means the board of directors of the Company. "Change in Control Transaction" means any of the following: (a) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act), other than the Company, or any of its Subsidiaries or any Investor or Excluded Group (an "Acquiring Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of the combined voting power or economic interests of the then outstanding voting securities of the Company entitled to vote generally in the election of directors; provided, however, that any transfer from any Investor or Excluded Group will not result in a Change in Control if such transfer was part of one or a series of related transactions the effect of which, absent the transfer to such Acquiring Person by the Investor or Excluded Group, would not have resulted in the acquisition by such Acquiring Person of 35% or more of the combined voting power or economic interests of the then outstanding voting securities; or (b) the individuals who at the beginning of any 12 consecutive month period following the Closing constituted a majority of the directors of the Company (the "Incumbent Majority") cease for any reason to constitute at least a majority of such directors; provided that (I) any individual becoming a director whose election, or nomination for election by the Company's stockholders 12 pursuant to this Agreement, was approved by a vote of the stockholders having the right to designate such director pursuant to this Agreement and (II) any director whose election to the Board or whose nomination for election by the stockholders of the Company was approved by the Incumbent Majority, shall, in each such case, be considered as though such individual were a member of the Incumbent Majority, but excluding, as a member of the Incumbent Majority, any such individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of the Company (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) and further excluding any person who is an affiliate or associate of an Acquiring Person having or proposing to acquire beneficial ownership of 25% or more of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors; or (c) the approval by the stockholders of the Company of a reorganization, merger or consolidation, in each case, with respect to which all or substantially all of the individuals and entities who were the respective beneficial owners of the voting securities of the Company or its parent immediately prior to such reorganization, merger or consolidation do not, following such reorganization, merger or consolidation, beneficially own, directly or indirectly, more than 51% of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors of the Company or its parent resulting from such reorganization, merger or consolidation; or (d) the sale or other disposition of assets representing 50% or more of the assets of the Company and its subsidiaries in one transaction or series of related transactions. "Closing" means the date hereof. "Common Stock" means the common stock of the Company, par value $.01 per share. "Common Stock Equivalents" means the number of shares of Common Stock owned beneficially or of record by the New Stockholders or the Existing Stockholders, as the case may be, as of the date of this Agreement. In the event that any New Stockholder Party or Existing Stockholder Party acquires beneficial or record ownership of any Equity Securities after the date of this Agreement which are not Common Stock Equivalents pursuant to the immediately preceding sentence, any Equity Securities thereafter Transferred by such Person shall be deemed to be such after acquired Equity Securities until the number of such after acquired Equity Securities owned beneficially or of record by such Person has been reduced to 0. "Equity Security" means any stock or similar security of the Company or any security (including indebtedness for borrowed money) convertible or exchangeable, with or without consideration, into or for any such stock or similar security, or any security (including 13 indebtedness for borrowed money) carrying any warrant or right to subscribe to or purchase any such stock or similar security, or any such warrant or right. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Excluded Group" means a "group" (as such term is used in Rule 13d-5 of the Exchange Act) that includes one or more of the Investors, including, without limitation, for the purpose of this definition only, any party to this Agreement. "Existing Stockholders Assignee" means the Existing Stockholders and any Affiliate of any Existing Stockholders, and, in the case of any individual, such individual's spouse, parents, immediate family or lineal descendants. "Existing Stockholder Parties" means the Existing Stockholders, the Existing Stockholders Assignees and any third party other than an Involuntary Transferee or New Stockholder Party who receives Equity Securities from any Existing Stockholder or any Existing Stockholders Assignee pursuant to Section 1 of this Agreement. "First Break Point" means the time at which the Total Ownership Ratio for either DB or Essar, as the case may be, is less than 50% but greater than 25%. "Investor" means Questor or Thayer or their respective Affiliates. "Involuntary Transfer" has the meaning set forth in Section 1.3. "Market Value" means, as of any date: (i) if any Equity Securities are listed on a national securities exchange, the average of the closing prices as reported for composite transactions during the 30 consecutive trading days preceding the trading day immediately prior to such date or, if no sale occurred on a trading day, then the mean between the closing bid and asked prices on such exchange on such trading day; (ii) if any Equity Securities are traded on the Nasdaq National Market ("NMM"), the average of the closing prices as reported on the NMM during the 30 consecutive trading days preceding the trading day immediately prior to such date or, if no sale occurred on a trading day, then the mean between the highest bid and lowest asked prices as of the close of business on such trading day, as reported on the NMM; (iii) if any Equity Securities are not traded on a national securities exchange or the NMM but are otherwise traded over-the-counter, the arithmetic average (for consecutive trading days) of the mean between the highest bid and lowest asked prices as of the close of business during the 30 consecutive trading days preceding the trading day immediately prior to such date as quoted on the National Association of Securities Dealers Automated Quotation system or an equivalent generally accepted reporting service; or (iv) if there is no active market for any Equity Securities, the market value thereof as mutually agreed by the Company and a majority of the Board including a majority of the independent directors. "New Stockholders Assignee" means the New Stockholders and any Affiliate of the New Stockholders, and, in the case of any individual, such individual's spouse, parents, immediate family or lineal descendants. 14 "New Stockholders Parties" means the New Stockholders, any New Stockholders Assignee and any third party other than an Involuntary Transferee or Existing Stockholder Party who receives Equity Securities from the New Stockholders or any the New Stockholders Assignee pursuant to a Transfer to which Section 1.2 hereof applies. "Note and Warrant Purchase Agreement" means the Note and Warrant Purchase Agreement among the Company and the New Stockholders dated as of the date of this Agreement. "Person" means an individual, corporation, partnership, limited liability company, joint venture, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "Public Sale" means Transfers (I) to the general public pursuant to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement, (II) to or through a broker or dealer or underwriter in a public distribution or a public securities transaction, or (III) in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act under Section 4(1) thereof so that all transfer restrictions and restrictive legends with respect to such Common Stock are removed upon the consummation of such Transfer and the transferor and transferee of such Common Stock receive an opinion of counsel for the Company, which shall be in form and content reasonably satisfactory to the transferor and transferee and their respective counsel, to the effect that such Common Stock in the hands of the transferee is freely transferable without restriction or registration under the Securities Act in a public or private transaction, or (IV) pursuant to Rule 144 or Rule 144A under the Securities Act; provided that a Public Sale shall not include Transfers of more than 5% of the Common Stock of the Company on a fully diluted basis by any party in one or a series of related transactions to any single Person or group (as defined in Rule 13d-5 under the Exchange Act). "Purchase Agreement" means the Note and Warrant Purchase Agreement by and among the Company and the New Stockholders dated as of the date of this Agreement. "Registration Rights Agreement" means the Registration Rights Agreement among the Company and the New Stockholders dated as of the date of this Agreement. "Second Break Point" means the time at which the Total Ownership Ratio for either DB or Essar, as the case may be, is less than 25% but greater than 10%. "Securities Act" means the Securities Act of 1933, as amended. "Third Break Point" means the time at which the Total Ownership Ratio for either DB or Essar, as the case may be, is less than 10%. "Total Ownership" means, with respect to any party, the total Common Stock Equivalents owned beneficially or of record by such party after giving effect to the consummation of all of the transactions contemplated by the Note and Warrant Purchase 15 Agreement (and assuming that all warrants held by such party have been exercised) and without giving effect to any subsequent dispositions of Common Stock Equivalents by such party. "Total Ownership Ratio" means, with respect to any party, the total Common Stock Equivalents owned beneficially or of record by such party upon the date of determination divided by Total Ownership of such party. "Transfer" means any direct or indirect sale, assignment, mortgage, transfer, pledge, hypothecation or other disposal other than the exercise, conversion or exchange of any option, warrant or convertible security. [Remainder of this page left blank intentionally] 16 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. AEGIS COMMUNICATIONS GROUP, INC. By: /s/ HERMAN SCHWARZ ------------------------------------ Name: Herman Schwarz Title: President and Chief Executive Officer DEUTSCHE BANK AG -- LONDON, BY DB ADVISORS, LLC AS INVESTMENT ADVISOR By: /s/ GLEN MACMULLIN ------------------------------------ Name: Glen MacMullin Title: Director By: /s/ PAUL BIGLER ------------------------------------ Name: Paul Bigler Title: Managing Director ESSAR GLOBAL LIMITED By: /s/ MADHU S. VUPPULURI ------------------------------------ Name: Madhu S. Vuppuluri Title: Executive Director 17 QUESTOR: QUESTOR PARTNERS FUND II, L.P. By: /s/ DEAN ANDERSON ------------------------------------ Name: Questor General Partner II, L.P., its General Partner Title: Managing Director By: /s/ DEAN ANDERSON ------------------------------------ Name: Questor Principals II, Inc., its General Partner Title: Managing Director QUESTOR SIDE-BY-SIDE PARTNERS II, L.P. By: /s/ DEAN ANDERSON ------------------------------------ Name: Questor Principals II, Inc. Title: Managing Director QUESTOR SIDE-BY-SIDE PARTNERS II 3(C)(1), L.P. By: /s/ DEAN ANDERSON ------------------------------------ Name: Questor Principals II, Inc. Title: Managing Director 18 TC CO-INVESTORS, LLC By: /s/ CHRISTOPHER M. TEMPLE ----------------------------------- Name: TC Management Partners, LLC a Delaware limited liability company, its General Partner Title: An Authorized Officer Name: Christopher M. Temple THAYER EQUITY INVESTORS III, L.P. By: /s/ CHRISTOPHER M. TEMPLE ----------------------------------- Name: TC Equity Partners, LLC a Delaware limited liability company, its General Partner Title: An Authorized Officer Name: Christopher M. Temple 19 EXHIBIT A Spousal Waiver [INSERT NAME] hereby waives and releases any and all equitable or legal claims and rights, actual, inchoate or contingent, which he or she may acquire with respect to the disposition, voting or control of the shares of Common Stock subject to the Stockholders' Agreement of Aegis Communications Group, Inc., dated as of _______, 2003, as the same shall be amended from time to time, except for rights in respect of the proceeds of any disposition of such Common Stock. ____________________________ Name: 20 EX-3 5 d10492a9exv3.txt REGISTRATION RIGHTS AGREEMENT EXHIBIT 3 EXECUTION COPY REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT, dated as of November 5, 2003 (this "Agreement"), by and among Aegis Communications Group, Inc., a Delaware corporation (the "Company"), Deutsche Bank AG - London acting through DB Advisors, LLC as investment advisor ("DB"), Essar Global Limited ("Essar" and collectively with DB, the "Purchasers") and Questor Partners Fund II, L.P., a Delaware limited partnership ("Fund II"), Questor Side-by-Side Partners II, L.P., a Delaware limited partnership (the "Side-By-Side Fund"), Questor Side-by-Side Partners II 3(c)(1), L.P., a Delaware limited partnership (the "3(C)(1) Fund", and together with Fund II and the Side-by-Side Fund, "Questor"), Thayer Equity Investors III, L.P., a Delaware limited partnership ("Thayer Equity"), TC Co-Investors, LLC, a Delaware limited liability company ("TC Co-Investors", and together with Thayer Equity, "Thayer"), Edward Blank, and The Edward Blank 1995 Grantor Retained Annuity Trust. WHEREAS, the Purchasers are purchasing warrants (the "Warrants") to purchase 527,661,932 shares of the Company's common stock, par value $0.01 per share (the "Common Stock"), and secured promissory notes in the principal amount of $15,887,500 (the "Notes") pursuant to that certain Note and Warrant Purchase Agreement dated as of the date hereof (the "Purchase Agreement"), between the Company and the Purchasers. NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, it is agreed as follows: 1. Definitions. (a) Unless otherwise defined herein, the terms below shall have the following meanings (such meanings being equally applicable to both the singular and plural forms of the terms defined): "Affiliate" shall mean, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such specified Person. "Agreement" shall mean this Registration Rights Agreement, including all amendments, modifications and supplements and any exhibits or schedules to any of the foregoing. "Business Day" shall mean any day that is not a Saturday, a Sunday or a day on which commercial banks are required or authorized by law to be closed in the State of New York. "Control" (including the terms "Controlled by" and "under common Control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise, including, without limitation, the ownership, directly or indirectly, of securities having the power to elect a majority of the board of directors or similar body governing the affairs of such Person. "Effective Period" shall mean the period commencing with the effective date of the Shelf Registration Statement and ending upon the earlier of (i) the termination of the registration rights pursuant to Section 5 hereof and (ii) such time as the Purchasers cease to own any Registrable Securities. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and all rules and regulations promulgated thereunder. "Existing Holders" shall mean the Existing Stockholders that hold Registrable Securities. "Existing Registrable Securities" shall mean (a) the shares of Common Stock held by, or issuable upon conversion of preferred stock to, the Existing Stockholders and (b) any securities issuable or issued or distributed in respect of any of the Common Stock identified in clause (a) by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, reorganization, merger, consolidation or otherwise. "Existing Stockholders" shall mean Questor, Thayer, Edward Blank and The Edward Blank 1995 Grantor Retained Annuity Trust. "Holders" shall means the Existing Holders and the New Holders. "NASD" shall mean the National Association of Securities Dealers, Inc., or any successor entity thereof. "New Holders" shall mean the Purchasers, and any transferees of the Purchasers to whom Registrable Securities are permitted to be transferred in accordance with the terms of this Agreement and the Purchase Agreement, and, in each case, who continue to be entitled to the rights of a Holder hereunder. "New Registrable Securities" shall mean (a) the shares of Common Stock issuable upon exercise of the Warrants and (b) any securities issuable or issued or distributed in respect of any of the Common Stock identified in clause (a) by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, reorganization, merger, consolidation or otherwise. "Person" shall mean any individual, corporation, partnership, joint venture, firm, trust, unincorporated organization, government or any agency or political subdivision thereof or other entity. "Prospectus" shall mean the Prospectus (including any summary Prospectus, preliminary Prospectus and any final Prospectus) included in the Registration Statement as amended or supplemented by any supplement with respect to the terms of the offering of any portion of the Registrable Securities pursuant to a Demand Registration or Piggy-Back Registration and by all other amendments and supplements thereto, including post-effective amendments and any material incorporated by reference therein. 2 "Registrable Securities" shall mean the Existing Registrable Securities and the New Registrable Securities. For purposes of this Agreement, Registrable Securities shall cease to be Registrable Securities when (i) a Registration Statement covering such Registrable Securities has been declared effective under the Securities Act by the SEC and such Registrable Securities have been disposed of pursuant to such effective Registration Statement or (ii) such Registrable Securities may be sold pursuant to Rule 144(k) of the Securities Act. "Registration Statement" shall mean the Demand Registration Statement, the Piggy-Back Registration Statement and/or the Shelf Registration Statement, as the case may be, including the Prospectus contained therein, any amendments to such Registration Statement (including post-effective amendments) and all exhibits and any material incorporated by reference in such Registration Statement. "Securities Act" shall mean the Securities Act of 1933, as amended, and all rules and regulations promulgated thereunder. "SEC" shall mean the Securities and Exchange Commission, or any successor thereto. (b) The following terms have the meanings set forth in the Section set forth opposite such term:
TERM SECTION ---- ------- Blackout Period 6 Common Stock Recitals Demand for Registration 3(c) Demand Registration 3(a) Demand Registration Statement 3(a) Indemnified Party 10(d) Indemnifying Party 10(d) Maximum Number of Securities 3(b) Notes Recitals Participating Demand Holders 3(a) Participating Piggy-Back Holders 4(b) Piggy-Back Registration 4(a) Piggy-Back Registration Statement 4(a) Purchase Agreement Recitals Purchasers Recitals Shelf Registration Statement 2 Warrants Recitals
2. Shelf Registration Statement. If the Company qualifies for use of the applicable form of registration statement, within 90 days after the date hereof, the Company shall file with the SEC, and thereafter use its reasonable best efforts to have declared effective as soon as practicable after the filing thereof, a "shelf" Registration Statement (a "Shelf Registration Statement") on Form S-3 (or any successor form) pursuant to Rule 415 under the Securities Act or on such other form as may be appropriate under the Securities Act, in each case, covering the 3 resale of all of the New Registrable Securities. The Company shall, subject to customary terms and conditions, use its reasonable best efforts to keep the Shelf Registration Statement continuously effective from the date that such Shelf Registration Statement is declared effective during the Effective Period to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the New Registrable Securities so registered. 3. Demand Registration. (a) After receipt of a written request from one or more New Holders requesting that the Company effect a registration (a "Demand Registration") under the Securities Act covering all or part of the Registrable Securities which specifies the intended method or methods of disposition thereof and the number of shares to be registered, the Company shall promptly notify all Holders in writing of the receipt of such request and each such Holder, in lieu of exercising its rights under Section 4 hereof, may elect (by written notice sent to the Company within ten (10) Business Days from the date of such Holder's receipt of the aforementioned notice from the Company) to have all or part of such Holder's Registrable Securities included in such registration thereof pursuant to this Section 3, and such Holder shall specify in such notice the number of Registrable Securities that such Holder elects to include in such registration. Thereupon, the Company shall, as expeditiously as is practicable, but in any event no later than thirty (30) days (excluding any days which occur during a permitted Blackout Period under Section 6 below) after receipt of a written request for a Demand Registration, file with the SEC and use its reasonable best efforts to cause to be declared effective a registration statement (a "Demand Registration Statement") relating to all shares of Registrable Securities that the Company has been so requested to register by such Holders ("Participating Demand Holders") for sale, to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities so registered; provided, however, that the aggregate value of the Registrable Securities requested to be registered (i) be at least $2,500,000, based on the closing trading price of the Common Stock on the date the demand to file such Demand Registration Statement is made, (ii) be at least 25% of the New Registrable Securities initially issuable upon exercise of the Warrants or (iii) include all Registrable Securities which remain outstanding at such time. (b) If the majority-in-interest of the Participating Demand Holders in a Demand Registration relating to a public offering requests that the offering be underwritten with a managing underwriter selected in the manner set forth in Section 14 below and such managing underwriter of such Demand Registration advises the Company in writing that, in its opinion, the number of securities to be included in such offering is greater than the total number of securities which can be sold therein without having a material adverse effect on the distribution of such securities or otherwise having a material adverse effect on the marketability thereof (the "Maximum Number of Securities"), then the Company shall include in such Demand Registration the Registrable Securities that the Participating Demand Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated first, among all the New Holders participating in such Demand Registration on a pro rata basis (based on the number of Registrable Securities requested to be included in such Demand Registration by each New Holder), and, second, to the Existing Holders on a pro rata basis (based on the number of Registrable Securities requested to be included in such 4 Demand Registration by each Existing Holder); provided, however, that in no event may Registrable Securities held by the Existing Holders be included in such Demand Registration unless all of the Registrable Securities requested to be included in the Demand Registration by the New Holders are included in such Demand Registration. If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company may include in such Demand Registration any other securities of the Company and other securities held by other security holders of the Company as the Company may in its discretion determine or be obligated to allow, in an amount, which together with the Registrable Securities included in such Demand Registration, shall not exceed the Maximum Number of Securities. (c) New Holders shall be entitled to an aggregate of four (4) registrations of Registrable Securities pursuant to this Section 3 (each, a "Demand for Registration") in addition to the Shelf Registration Statement pursuant to Section 2; provided that a registration requested pursuant to this Section 3 shall not be deemed to have been effected for purposes of this Section 3(c) unless (i) it has been declared effective by the SEC, (ii) it has remained effective for the period set forth in Section 7(a), (iii) Holders of Registrable Securities included in such registration have not, prior to the filing of the relevant Demand Registration Statement, withdrawn sufficient shares from such registration such that the remaining Holders requesting registration would not have been able to request registration under the provisions of Section 3, and (iv) the offering of Registrable Securities pursuant to such registration is not subject to any stop order, injunction or other order or requirement of the SEC (other than any such stop order, injunction, or other order or requirement of the SEC prompted by act or omission of Holders of Registrable Securities); provided, however, that if the New Holders participating in such Demand Registration are not able to register and sell at least two-thirds of the New Registrable Securities requested to be included in a Demand Registration, then such Demand Registration shall not be counted as one of the five Demands for Registration provided for pursuant to this Section 3(c). (d) Notwithstanding anything to the contrary contained herein, the Company shall not be required to prepare and file (i) more than two (2) Demand Registration Statements in any twelve-month period, (ii) any Demand Registration Statement within 90 days following the date of effectiveness of any other Registration Statement or (iii) any Demand Registration Statement within 90 days following the date of effectiveness of any other registration statement filed pursuant to any other registration rights agreement to which the Company is a party or with respect to the sale of Common Stock by the Company (or such longer period of time as may be specified in an underwriting agreement relating to such registration statement). 4. Piggy-Back Registration. (a) If the Company proposes to file on its behalf and/or on behalf of any holder of its securities (other than a Holder of Registrable Securities) a registration statement under the Securities Act on any form (other than a registration statement on Form S-4 or S-8 or any successor form for securities to be offered in a transaction of the type referred to in Rule 145 under the Securities Act or to employees of the Company pursuant to any employee benefit plan, respectively) for the registration of Common Stock (a "Piggy-Back Registration"), it will give 5 written notice to all Holders at least twenty (20) days before the initial filing with the SEC of such registration statement (a "Piggy-Back Registration Statement"), which notice shall set forth the intended method of disposition of the securities proposed to be registered by the Company. The notice shall offer to include in such filing the aggregate number of shares of Registrable Securities as such Holders may request. (b) Each Holder desiring to have Registrable Securities registered under this Section 4 ("Participating Piggy-Back Holders") shall advise the Company in writing within ten (10) days after the date of receipt of such offer from the Company, setting forth the amount of such Registrable Securities for which registration is requested. The Company shall thereupon include in such filing the number or amount of Registrable Securities for which registration is so requested, subject to paragraph (c) below, and shall use its reasonable best efforts to effect registration of such Registrable Securities under the Securities Act. (c) If the Piggy-Back Registration relates to an underwritten public offering and the managing underwriter of such proposed public offering advises in writing that, in its opinion, the amount of Registrable Securities requested to be included in the Piggy-Back Registration in addition to the securities being registered by the Company would be greater than the Maximum Number of Securities (having the same meaning as defined in Section 3 but replacing the term "Demand Registration" with "Piggy-Back Registration"), then: (i) in the event the Company initiated the Piggy-Back Registration, the Company shall include in such Piggy-Back Registration, first, the securities the Company proposes to register and, second, the Registrable Securities of all Participating Piggy-Back Holders, proposed to be included in such Piggy-Back Registration in an amount which, together with the securities the Company proposes to register, shall not exceed the Maximum Number of Securities, such amount to be allocated, first, to the New Holders requesting Registrable Securities be included in the Piggy-Back Registration on a pro rata basis (based on the aggregate number of Registrable Securities requested by such New Holders to be included in the Piggy-Back Registration Statement) and, second, to the Existing Holders requesting Registrable Securities be included in the Piggy-Back Registration Statement on a pro rata basis (based on the aggregate number of Registrable Securities requested by such Existing Holders to be included in the Piggy-Back Registration Statement); provided, however, that in no event may Registrable Securities held by the Existing Holders be included in such Piggy-Back Registration unless all of the Registrable Securities requested to be included in such Piggy-Back Registration by the New Holders are included in such Piggy-Back Registration; (ii) in the event any holder or holders of securities of the Company initiated the Piggy-Back Registration, the Company shall include in such Piggy-Back Registration, first, the securities such initiating security holder or holders propose to register, second, the Registrable Securities of all Participating Piggy-Back Holders proposed to be included in such Piggy-Back Registration, in an amount which, together with the securities the initiating security holder or holders propose to register, shall not exceed the Maximum Number of Securities, such amount to be allocated among such Participating Piggy-Back Holders, first, to the New Holders requesting Registrable Securities be included in the Piggy-Back Registration Statement on a pro rata basis (based on the 6 aggregate number of Registrable Securities requested by such New Holders to be included in the Piggy-Back Registration Statement) and, second, to the Existing Holders requesting Registrable Securities be included in the Piggy-Back Registration Statement on a pro rata basis (based on the aggregate number of Registrable Securities requested by such Existing Holders to be included in the Piggy-Back Registration Statement); provided, however, that in no event may Registrable Securities held by the Existing Holders be included in such Piggy-Back Registration unless all of the Registrable Securities requested to be included in such Piggy-Back Registration by the New Holders are included in such Piggy-Back Registration. (d) The Company will not hereafter enter into any agreement, which is inconsistent with the rights of priority provided in paragraph (c) above. 5. Termination of Registration Rights. (a) The registration rights set forth in Sections 1, 2 and 3 above shall terminate at such time as there cease to be any Registrable Securities. (b) By execution hereof, the Company and the Existing Stockholders hereby terminate all registration rights granted pursuant to (i) the Securities Purchase and Registration Rights Agreement, dated April 7, 1998, by and between ATC Communications Group, Inc. and Thayer Equity and (ii) the Series F Senior Voting Convertible Preferred Stock Purchase and Registration Rights Agreement, dated August 25, 1999, by and among the Company and the Existing Stockholders. 6. Blackout Periods. The Company shall have the right to delay or defer the filing or effectiveness of a Registration Statement required pursuant to Sections 3 and 4 hereof or suspend sales under any Shelf Registration Statement filed hereunder during no more than three (3) periods aggregating to not more than 60 days in any twelve-month period (a "Blackout Period") in the event that (i) the Company would, in accordance with the advice of its counsel, be required to disclose in the Prospectus information not otherwise then required by law to be publicly disclosed and (ii) in the reasonable judgment of the Company's Board of Directors, there is a reasonable likelihood that such disclosure, or any other action to be taken in connection with the Prospectus, would materially and adversely affect or interfere with any financing, acquisition, merger, disposition of assets (not in the ordinary course of business), corporate reorganization or other similar transaction involving the Company; provided, however, that the Company shall delay during such Blackout Period the filing or effectiveness of, or suspend sales under, any Registration Statement required pursuant to the registration rights of the holders of any other securities of the Company. The Company shall promptly give the Holders written notice of such determination containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. 7. Registration Procedures. Except as otherwise provided herein, if the Company is required by the provisions of Section 2, 3 or 4 to use its reasonable best efforts to effect the registration of any of its securities under the Securities Act, the Company will, as expeditiously as practical: 7 (a) prepare and file with the SEC a Registration Statement with respect to such securities and use its reasonable best efforts to cause such Registration Statement promptly to become and remain effective for a period of time required for the disposition of such securities by the holders thereof but not to exceed 30 days (except with respect to a Shelf Registration Statement which shall remain effective during the Effective Period); provided, however, that before filing such Registration Statement or any amendments or supplements thereto (for purposes of this subsection, amendments shall not be deemed to include any filing that the Company is required to make pursuant to the Exchange Act), the Company shall furnish the representatives of the Holders referred to in Section 7(m) copies of all documents proposed to be filed, which documents will be subject to the reasonable review and comment of the representatives' counsel. The Company shall not be deemed to have used its reasonable best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in the Holders of such Registrable Securities not being able to sell such Registrable Securities during that period, unless such action is undertaken for a legitimate business purpose and the delay in effectiveness is required under applicable law; (b) prepare and file with the SEC such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such Registration Statement until the earlier of such time as all of such securities have been disposed of in a public offering or the expiration of 30 days (except with respect to the Shelf Registration Statement, for which such period shall be the Effective Period); (c) furnish to such Holders such number of conformed copies of the applicable Registration Statement and each such amendment and supplement thereto (including in each case all exhibits), and of any Prospectus in conformity with the requirements of the Securities Act, and such other documents, as such selling security holders may reasonably request; (d) use its reasonable best efforts to register or qualify the securities covered by such Registration Statement under such other securities or blue sky laws of such jurisdictions within the United States and Puerto Rico as each Holder of such securities shall reasonably request, to keep such registration or qualification in effect for so long as such Registration Statement remains in effect, and to take any other action which may be reasonably necessary to enable such seller to consummate the disposition in such jurisdictions of the securities owned by such Holder (provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business, subject itself to taxation in or to file a general consent to service of process in any jurisdiction wherein it would not but for the requirements of this paragraph (d) be obligated to do so; and provided further that the Company shall not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that any Holder submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lockup or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless such Holder agrees to do so), and do such other reasonable acts and things as may be required 8 of it to enable such Holder to consummate the disposition in such jurisdiction of the securities covered by such Registration Statement; (e) furnish, at the request of any Holder requesting registration of Registrable Securities pursuant to Section 3 or 4, if the method of distribution is by means of an underwriting, on the date that the shares of Registrable Securities are delivered to the underwriters for sale pursuant to such registration, or if such Registrable Securities are not being sold through underwriters, on the date that the Registration Statement with respect to such shares of Registrable Securities becomes effective, (1) a signed opinion, dated such date, of the independent legal counsel representing the Company for the purpose of such registration, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holders making such request, as to such matters as such underwriters or the Holders holding a majority of the Registrable Securities included in such registration, as the case may be, may reasonably request; and (2) letters dated such date and the date the offering is priced from the independent certified public accountants of the Company, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holders making such request and, if such accountants refuse to deliver such letters to such Holders, then to the Company (i) stating that they are independent certified public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements and other financial data of the Company included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Securities Act and (ii) covering such other financial matters (including information as to the period ending not more than five (5) Business Days prior to the date of such letters) with respect to the registration in respect of which such letter is being given as such underwriters or the Holders holding a majority of the Registrable Securities included in such registration, as the case may be, may reasonably request and as would be customary in such a transaction; (f) enter into customary agreements (including, if the method of distribution is by means of an underwriting, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities; (g) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make earnings statements satisfying the provisions of Section 11(a) of the Securities Act generally available to the Holders no later than 45 days after the end of any twelve-month period (or 90 days, 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 an underwritten public offering, or (ii) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve-month periods, provided that the obligations shall be satisfied by the timely filing of quarterly and annual reports on Forms 10-Q and 10-K under the Exchange Act; 9 (h) use its reasonable best efforts to cause all such Registrable Securities to be listed on each securities exchange or quotation system on which similar securities issued by the Company are listed or traded; (i) give written notice to the Holders: (i) when such Registration Statement or any amendment thereto has been filed with the SEC and when such Registration Statement or any post-effective amendment thereto has become effective; (ii) of any request by the SEC for amendments or supplements to such Registration Statement or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for that purpose; (iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Common Stock for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and (v) of the existence of any fact that results in: (A) the Registration Statement containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (B) the Prospectus containing an untrue statement of a material fact or omitting to state a material fact necessary in order to make the statements therein not misleading (which notice shall be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made); (j) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of such Registration Statement at the earliest possible time; (k) furnish to each Holder, without charge, at least one copy of such Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits (including those, if any, incorporated by reference); (l) upon the occurrence of any event contemplated by Section 7(i)(v) above, promptly prepare a post-effective amendment to such Registration Statement or a supplement to the related Prospectus or file any other required document so that, as thereafter delivered to the Holders, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with Section 7(i)(v) above to suspend the use of the Prospectus until the requisite changes to the Prospectus have been made, then 10 the Holders shall suspend use of such Prospectus and use their reasonable best efforts to return to the Company all copies of such Prospectus (at the Company's expense) other than permanent file copies then in such Holder's possession, and the period of effectiveness of such Registration Statement provided for above shall be extended by the number of days from and including the date of the giving of such notice to the date Holders shall have received such amended or supplemented Prospectus pursuant to this Section 7(l); (m) make reasonably available for inspection by representatives of the Holders, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by such representative or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and cause the Company's officers, directors and employees to supply all relevant information reasonably requested by such representative or any such underwriter, attorney, accountant or agent in connection with the registration; and (n) use its reasonable best efforts to procure the cooperation of the Company's transfer agent in settling any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Holders or the underwriters. It shall be a condition precedent to the obligation of the Company to take any action pursuant to this Agreement in respect of the Registrable Securities which are to be registered at the request of any Holder that such Holder shall furnish to the Company within ten days of the Company's request such information regarding the Registrable Securities held by such Holder and the intended method of disposition thereof as the Company shall reasonably request and as shall be required in connection with the action taken by the Company. 8. Expenses. All expenses incurred in connection with each registration pursuant to Sections 2, 3 and 4 of this Agreement, excluding underwriters' discounts and commissions, but including without limitation all registration, filing and qualification fees, word processing, duplicating, printers' and accounting fees (including the expenses of any special audits or "comfort" letters required by or incidental to such performance and compliance), fees of the NASD or listing fees, messenger and delivery expenses, all fees and expenses of complying with state securities or blue sky laws, fees and disbursements of counsel for the Company and the reasonable fees and disbursements of one counsel for the selling Holders (which counsel shall be selected by the Holders holding a majority in interest of the Registrable Securities being registered), shall be paid by the Company. 9. Rule 144 Information. (a) At all times after ninety (90) days after any Registration Statement covering securities of the Company shall have become effective, the Company agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act; and 11 (ii) use its best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act. (b) At all times during which the Company is neither subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, nor exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, it will provide, upon the written request of any Holder of Registrable Securities in written form (as promptly as practicable and in any event within 15 Business Days), to any prospective buyer of such stock designated by such Holder, all information required by Rule 144A(d)(4)(i) of the General Regulations promulgated by the SEC under the Securities Act. 10. Indemnification and Contribution. (a) The Company shall indemnify and hold harmless each Holder, such Holder's directors and officers, each person who participates in the offering of such Registrable Securities, including underwriters (as defined in the Securities Act), and each person, if any, who controls such Holder or participating person within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which they may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or proceedings in respect thereof) arise out of or are based on any untrue or alleged untrue statement of any material fact contained in such registration statement on the effective date thereof (including any Prospectus filed under Rule 424 under the Securities Act or any amendments or supplements thereto) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse each such Holder, such Holder's directors and officers, such participating person or controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable to any Holder, such Holder's directors and officers, participating person or controlling person in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in connection with such registration statement, preliminary prospectus, final prospectus or amendments or supplements thereto, in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, such Holder's directors and officers, participating person or controlling person. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any such Holder, such Holder's directors and officers, participating person or controlling person, and shall survive the transfer of such securities by such Holder. (b) Each Holder requesting or joining in a registration severally and not jointly shall indemnify and hold harmless the Company, each of its directors and officers, each person, if any, who controls the Company within the meaning of the Securities Act, and each agent and any underwriter for the Company (within the meaning of the Securities Act) against any losses, claims, damages or liabilities, joint or several, to which the Company or any such director, officer, controlling person, agent or underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or proceedings 12 in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such registration statement on the effective date thereof (including any Prospectus filed under Rule 424 under the Securities Act or any amendments or supplements thereto) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in such registration statement, preliminary or final prospectus, or amendments or supplements thereto, in reliance upon and in conformity with written information furnished by or on behalf of such Holder expressly for use in connection with such registration; and each such Holder shall reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling Person, agent or underwriter in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the liability of each Holder hereunder shall be limited to the aggregate net proceeds received by such Holder in connection with any such registration under the Securities Act. (c) If the indemnification provided for in this Section 10 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the 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 losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. If the allocation provided in this paragraph (c) is not permitted by applicable law, the parties shall contribute based upon the relevant benefits received by the Company from the initial offering of the Registrable Securities on the one hand and the net proceeds received by the Holders from the sale of Registrable Securities on the other. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 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. 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. (d) Any Person entitled to indemnification hereunder (the "Indemnified Party") agrees to give prompt written notice to the indemnifying party (the "Indemnifying Party") after the receipt by the Indemnified Party of any written notice of the commencement of 13 any action, suit, proceeding or investigation or threat thereof made in writing for which the Indemnified Party intends to claim indemnification or contribution pursuant to this Agreement; provided that the failure so to notify the Indemnified Party shall not relieve the Indemnifying Party of any liability that it may have to the Indemnifying Party hereunder unless such failure is materially prejudicial to the Indemnifying Party. If notice of commencement of any such action is given to the Indemnifying Party as provided above, the Indemnifying Party shall be entitled to participate in and, to the extent it may wish, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action, or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (A) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (B) there are one or more legal defenses available to it which are substantially different from or additional to those available to the Indemnifying Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent, which consent shall not be unreasonably withheld. (e) The agreements contained in this Section 10 shall survive the transfer of the Registration Statement and shall remain in full force and effect, regardless of any investigation made by or on behalf of any Holder or such director, officer or participating or controlling Person. 11. Certain Additional Limitations on Registration Rights. Notwithstanding the other provisions of this Agreement, the Company shall not be obligated to register the Registrable Securities of any Holder (i) if such Holder or any underwriter of such Registrable Securities shall fail to furnish to the Company necessary information in respect of the distribution of such Registrable Securities, or (ii) if such registration involves an underwritten offering, such Registrable Securities are not included in such underwritten offering on the same terms and conditions as shall be applicable to the other securities being sold through underwriters in the registration or such Holder fails to enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwritten offering. 12. Limitations on Registration of Other Securities; Representation. From and after the date of this Agreement, the Company shall not, without the prior written consent of a majority-in-interest of the Holders, enter into any agreement with any holder or prospective holder of any securities of the Company giving such holder or prospective holder any registration rights the terms of which are as or more favorable taken as a whole than the registration rights granted to the Holders hereunder unless the Company shall also give such rights to the Holders hereunder. 13. No Inconsistent Agreements. The Company will not hereafter enter into any agreement, with respect to its securities, which is inconsistent in any material respects with the rights granted to the Holders in this Agreement. 14 14. Selection of Managing Underwriters. In the event the Participating Demand Holders have requested an underwritten offering, the underwriter or underwriters shall be selected by the Holders of a majority of the Registrable Securities proposed to be sold in such Demand Registration and shall be approved by the Company, which approval shall not be unreasonably withheld or delayed, provided (i) that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders of Registrable Securities, (ii) that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders of Registrable Securities, and (iii) that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Securities of such Holder and such Holder's intended method of distribution and any other representations required by law or reasonably required by the lead underwriter. Subject to the foregoing, all Holders proposing to distribute Registrable Securities through such underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters. Subject to the provisions of Section 9(b), if any Holder of Registrable Securities disapproves of the terms of the underwriting, such Holder may elect to withdraw all its Registrable Securities by written notice to the Company, the managing underwriter and the other Holders participating in such registration. The securities so withdrawn shall also be withdrawn from registration. 15. Miscellaneous. (a) Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of the Agreement was not performed in accordance with the terms hereof and that the parties hereto shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity. (b) Amendments; Waivers. (i) This Agreement may be amended, modified or supplemented by a written instrument signed by the Company and a majority in interest of the New Holders; provided, however, that no amendment, modification or supplement may materially and adversely affect any other Holder without such Holder's written consent. The Company shall notify all Holders promptly after any such amendment, modification or supplement shall have taken effect. (ii) No failure or delay by any party in exercising any right, power or privilege hereunder (other than a failure or delay beyond a period of time specified herein) shall operate as a waiver thereof and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. (c) Notice Generally. All notices, request, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by courier service, by fax or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses: 15 (i) If to any Holder, at its last known address appearing on the books of the Company maintained for such purpose. (ii) If to the Company, at: Aegis Communications Group, Inc. 7880 Bent Branch Drive Suite 150 Irving, Texas 75063 Attn: Herman M. Schwarz Facsimile: (678) 433-6502 with a copy to: Hughes & Luce, LLP 1717 Main Street Suite 2800 Dallas, Texas 75201 Attn: David G. Luther Facsimile: (214) 939-5849 or at such other address as may be substituted by notice given as herein provided. (d) Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto as hereinafter provided. The registration rights of any Holder with respect to any Registrable Securities shall be transferred to any Person who is the transferee of such Registrable Securities. All of the obligations of the Company hereunder shall survive any such transfer. Except as provided in Sections 3, 4 and 10, no Person other than the parties hereto and their successors and permitted assigns is intended to be a beneficiary of this Agreement. (e) Headings. The headings and subheadings in this Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof. (f) Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. (i) Any claim, action, suit or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby may be heard and determined in any New York state or federal court sitting in The City of New York, County of Manhattan, and each of the parties hereto hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom in any such claim, action, suit or proceeding) and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such claim, action, suit or proceeding in any such court or that any such claim, action, suit or proceeding that is brought in any such court has been brought in an inconvenient forum. 16 (ii) Subject to applicable law, process in any such claim, action, suit or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing and subject to applicable law, each party agrees that service of process on such party as provided in Section 15(c) shall be deemed effective service of process on such party. Nothing herein shall affect the right of any party to serve legal process in any other manner permitted by law or at equity. WITH RESPECT TO ANY SUCH CLAIM, ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT, EACH OF THE PARTIES IRREVOCABLY WAIVES AND RELEASES TO THE OTHER ITS RIGHT TO A TRIAL BY JURY, AND AGREES THAT IT WILL NOT SEEK A TRIAL BY JURY IN ANY SUCH PROCEEDING. (g) Severability. If, at any time, any provision hereof is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. (h) Entire Agreement. This Agreement, the Purchase Agreement, the Notes and the Warrants constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto. (i) Cumulative Remedies. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive its right to use any or all other remedies. Such rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. (j) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. [SIGNATURE APPEARS ON NEXT PAGE] 17 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. AEGIS COMMUNICATIONS GROUP, INC. By: /s/ HERMAN M. SCHWARZ ------------------------------------ Name: Herman M. Schwarz Title: President and Chief Executive Officer DEUTSCHE BANK AG - LONDON, BY DB ADVISORS, LLC AS INVESTMENT ADVISOR By: /s/ GLENN MACMULLIN ------------------------------------ Name: Glenn MacMullin Title: Director By: /s/ PAUL BIGLER ------------------------------------ Name: Paul Bigler Title: Managing Director ESSAR GLOBAL LIMITED By: /s/ MADHU S. VUPPULURI ------------------------------------ Name: Madhu S. Vuppuluri Title: Executive Director 18 QUESTOR: QUESTOR PARTNERS FUND II, L.P. By: /s/ DEAN ANDERSON ---------------------------------------- Name: Questor General Partner II, L.P., its General Partner Title: Managing Director By: /s/ DEAN ANDERSON ---------------------------------------- Name: Questor Principals II, Inc., its General Partner Title: Managing Director QUESTOR SIDE-BY-SIDE PARTNERS II, L.P. By: /s/ DEAN ANDERSON ---------------------------------------- Name: Questor Principals II, Inc. Title: Managing Director QUESTOR SIDE-BY-SIDE PARTNERS II 3(C)(1), L.P. By: /s/ DEAN ANDERSON ---------------------------------------- Name: Questor Principals II, Inc. Title: Managing Director 19 TC CO-INVESTORS, LLC By: /s/ CHRISTOPHER M. TEMPLE ----------------------------------- Name: TC Management Partners, LLC a Delaware limited liability company, its General Partner Title: An Authorized Officer Name: Christopher M. Temple THAYER EQUITY INVESTORS III, L.P. By: /s/ CHRISTOPHER M. TEMPLE ----------------------------------- Name: TC Equity Partners, LLC a Delaware limited liability company, its General Partner Title: An Authorized Officer Name: Christopher M. Temple 20 EDWARD BLANK By: /s/ EDWARD BLANK ------------------------ Name: Edward Blank THE EDWARD BLANK 1995 GRANTOR RETAINED ANNUITY TRUST By: /s/ ALLEN B. LEVITHAN ------------------------ Name: Allen B. Levithan Title: Trustee 21 EX-4 6 d10492a9exv4.txt WRITTEN CONSENT OF THE MAJORITY OF THE HOLDERS EXHIBIT 4 WRITTEN CONSENT OF THE MAJORITY OF THE HOLDERS OF COMMON STOCK AND SERIES F PREFERRED STOCK OF AEGIS COMMUNICATIONS GROUP, INC. The undersigned stockholders of Aegis Communications Group, Inc., a Delaware corporation (the "Company"), who together hold shares having more than the minimum number of votes that would be necessary to take the actions described herein at a meeting at which the holders of all shares entitled to vote on the action were present and voted, hereby execute this consent pursuant to Section 228 of the Delaware General Corporation Law for the purpose of acting upon proposals to adopt such resolutions: I. AMENDMENT OF CERTIFICATE OF INCORPORATION TO INCREASE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK WHEREAS, in connection with that certain Note and Warrant Purchase Agreement (the "Agreement") dated November 5, 2003, by and among the Company, Deutsche Bank AG--London acting through DB Advisors, LLC as investment advisor ("DB") and Essar Global Limited ("Essar," and together with DB, the "Purchasers"), it is in the best interests of the Company to amend the Amended and Restated Certificate of Incorporation dated August 16, 1999, as amended by the Certificate of Amendment dated December 10, 1999 (together, the "Certificate of Incorporation") to increase the number of shares of the Company's Common Stock, $0.01 par value (the "Common Stock") authorized for issuance from an aggregate of 200,000,000 shares to an aggregate of 800,000,000 shares of Common Stock. WHEREAS, the Board of Directors of the Company, at a special meeting of the Board of Directors called for such purpose, duly adopted resolutions by unanimous vote authorizing the proposed amendments to the Certificate of Incorporation of the Corporation, declaring said amendments to be advisable, and directing that said amendments be submitted to the stockholders of the Company for their consideration. NOW THEREFORE BE IT RESOLVED, that the undersigned stockholders of the Company hereby authorize, approve and adopt an increase in the number of shares of Common Stock authorized for issuance pursuant to the Certificate of Incorporation to an aggregate of 800,000,000 shares of Common Stock. RESOLVED, that the undersigned stockholders of the Company hereby authorize, approve and adopt Certificate of Amendment No. 2 to the Certificate of Incorporation as set forth in Exhibit A to effectuate such increase and authorize the officers of the Company to file Amendment No. 2 to the Certificate of Incorporation with the Secretary of State of the State of Delaware. RESOLVED, that all actions of the Board of Directors and officers of the Company previously taken on behalf of the Company to effectuate the adoption of Certificate of Amendment No. 2 to the Certificate of Incorporation are hereby ratified and approved. 1 II. APPROVAL OF TRANSACTION BY HOLDERS OF SERIES F PREFERRED STOCK WHEREAS, pursuant to the Series F Preferred Stock Certificate of Designation, the holders of the Series F Preferred Stock have the right to approve the transactions contemplated by the Agreement. WHEREAS, the Board of Directors of the Company, at a special meeting of the Board of Directors called for such purpose, duly adopted resolutions by unanimous vote authorizing the Company to enter into and consummate the transactions contemplated by the Agreement, declaring same to be advisable, and directing that the Agreement and the transactions contemplated thereby be submitted to the holders of the shares of Series F Preferred Stock of the Company for their consideration. NOW THEREFORE BE IT RESOLVED, that the undersigned holders of the Series F Preferred Stock of the Company hereby authorize, approve and adopt the Company's entry into and consummation of the transactions contemplated by the Agreement. III. AMENDMENT OF SERIES F CERTIFICATE OF DESIGNATION WHEREAS, in connection with the Agreement, it is in the best interests of the Company to amend the Series F Preferred Stock Certificate of Designation dated December 10, 1999 (the "Series F Certificate of Designation") to adjust the conversion rate of the shares of Series F Preferred Stock such that, following such amendment, the outstanding 23,375 shares of Series F Preferred Stock will be convertible into 46,910,503 shares of Common Stock of the Company, and shall be converted into such shares on the Subsequent Closing Date (as defined in the Agreement) subject to the completion and effectiveness of the Thayer Condition (as defined in the Agreement), and to remove certain conversion adjustment and antidilution protections from the Series F Certificate of Designation. WHEREAS, the Board of Directors of the Company, at a special meeting of the Board of Directors called for such purpose, duly adopted resolutions by unanimous vote authorizing the proposed amendments to the Series F Certificate of Designation, declaring said amendments to be advisable, and directing that said amendments be submitted to the holders of the requisite shares of Common Stock and Series F Preferred Stock of the Company for their consideration. NOW THEREFORE BE IT RESOLVED, that the undersigned stockholders of the Company hereby authorize, approve and adopt amendments to the Series F Certificate of Designation to adjust the conversion rate of the shares of Series F Preferred Stock such that, following such amendment, the outstanding 23,375 shares of Series F Preferred Stock will be convertible into 46,910,503 shares of Common Stock of the Company, and shall be converted into such shares on the Subsequent Closing Date (as defined in the Agreement) subject to the completion and effectiveness of the Thayer Condition (as defined in the Agreement), and to remove certain conversion adjustment and antidilution protections from the Series F Certificate of Designation. RESOLVED, that the undersigned stockholders of the Company hereby authorize, approve and adopt the Certificate of Amendment to the Series F Preferred Stock Certificate of 2 Designation as set forth in Exhibit B to effectuate the proposed amendments and authorize the officers of the Company to file the Certificate of Amendment with the Secretary of State of the State of Delaware. RESOLVED, that all actions of the Board of Directors and officers of the Company previously taken on behalf of the Company to effectuate the adoption of the Certificate of Amendment are hereby ratified and approved. IV. NOTICE TO STOCKHOLDERS WHEREAS, the undersigned wish to provide notice of the actions taken herein to the stockholders of the Company in accordance with Section 228(e) of the Delaware General Corporation Law and Regulation 14C of the Securities Exchange Act of 1934. NOW THEREFORE BE IT RESOLVED, that an information statement meeting the requirements of Section 228(e) of the Delaware General Corporation Law and Regulation 14C of the Securities Exchange Act of 1934 be delivered to all stockholders of the Company, and the Company's officers are authorized and directed to cause such notice to be delivered promptly to the stockholders. V. GENERAL RESOLVED, that the Board of Directors and officers of the Company are hereby authorized and directed, on behalf of the Company, to do all things that such directors or officers may deem to be necessary or desirable to effect the purposes and intent of the foregoing resolutions. Executed as of November 5, 2003. QUESTOR PARTNERS FUND II, L.P. By Questor General Partner II, L.P., its General Partner By: Questor Principals II, Inc., its General Partner By: /s/ Dean Anderson --------------------------------------- Name: Dean Anderson ------------------------------------- Title: Managing Director ------------------------------------ Date: 11-4-03 ------------------------------------- 3 QUESTOR SIDE-BY-SIDE PARTNERS II, L.P. By: Questor Principals II, Inc., its General Partner By: /s/ Dean Anderson ----------------------------------------- Name: Dean Anderson --------------------------------------- Title: Managing Director -------------------------------------- Date: 11-4-03 --------------------------------------- QUESTOR SIDE-BY-SIDE PARTNERS II 3(C)(1), L.P. By: Questor Principals II, Inc., its General Partner By: /s/ Dean Anderson ----------------------------------------- Name: Dean Anderson --------------------------------------- Title: Managing Director -------------------------------------- Date: 11-4-03 --------------------------------------- TC CO-INVESTORS, LLC By TC Management Partners, LLC its General Partner By: /s/ Christopher M. Temple ------------------------------ Name: Christopher M. Temple ---------------------------- Title: An Authorized Officer --------------------------- Date: --------------------------- 4 THAYER EQUITY INVESTORS III, L.P. By: TC Equity Partners, LLC, its General Partner By: /s/ Christopher M. Temple ------------------------------ Name: Christopher M. Temple ---------------------------- Title: An Authorized Officer --------------------------- Date: ---------------------------- 5 EXHIBIT A CERTIFICATE OF AMENDMENT NO. 2 TO THE CERTIFICATE OF INCORPORATION OF AEGIS COMMUNICATIONS GROUP, INC. Aegis Communications Group, Inc., a corporation organized and existing under the Delaware General Corporation Law (the "Corporation"), DOES HEREBY CERTIFY: FIRST: that the Board of Directors of the Corporation, at a special meeting of the Board of Directors called for such purpose, duly adopted resolutions by unanimous vote authorizing proposed amendments to the Certificate of Incorporation of the Corporation, declaring said amendments to be advisable, and directing that said amendments be submitted to the stockholders of said corporation for their consideration. In applicable part, the resolutions authorizing the amendments are as follows: "RESOLVED, that the amendment of the Company's Certificate of Incorporation to increase the Company's authorized capital stock to 802,000,000 shares, comprised of 2,000,000 shares of preferred stock and 800,000,000 shares of common stock shall, through a Certificate of Amendment No. 2 to the Amended and Restated Certificate of Incorporation, be and it hereby is approved and adopted; RESOLVED, that the amendment to the Certificate of Incorporation described above be submitted for approval to the holders of outstanding stock of the Company having not less than the minimum number of votes that would be necessary to authorize or take such action and that the officers of the Company, or any one of them, are hereby authorized and directed, in the name and on behalf of the Company, to do or cause to be done all such acts as they may deem necessary or advisable in connection with the preparation, execution and filing with the Securities and Exchange Commission of the Information Statement, and thereafter the dissemination of the Information Statement to the stockholders who have not consented in writing; and that all such acts of such officers that are in accordance with the purposes and intent of this resolution, are hereby adopted, ratified and confirmed as the valid acts of the Company; RESOLVED, that each of the officers of the Company is hereby authorized, empowered and directed to execute, verify, acknowledge, certify, deliver and file such other agreements, instruments, documents, and certificates, to attach to these resolutions such additional resolutions, and to take or cause to be taken such other actions as may be necessary, desirable, or appropriate to effect the purposes and intentions of the foregoing resolutions." SECOND: that the amendment of the Certificate of Incorporation, which would strike in its entirety the first paragraph of Article Fourth of the Certificate of Incorporation of the Corporation and insert in its place a new first paragraph of Article Fourth, is as follows: 6 "FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue shall be 802,000,000 shares, consisting of (a) 800,000,000 shares of common stock, $.01 par value per share ("Common Stock"), and (b) 2,000,000 shares of preferred stock, $.01 par value per share ("Preferred Stock")." THIRD: that thereafter, stockholders of said Corporation holding the necessary number of shares as required by statute, duly adopted and approved said amendments in a written consent executed in accordance with Section 228 of the Delaware General Corporation Law. FOURTH: that said amendment was duly adopted in accordance with the provisions of Section 242 of the Delaware General Corporation Law. IN WITNESS WHEREOF, the Board of Directors of the Company has caused this Certificate of Amendment to be executed and filed on this ___ day of ____________, 2003. AEGIS COMMUNICATIONS GROUP, INC., a Delaware corporation By: ------------------------------------------------ Herman M. Schwarz President and Chief Executive Officer 7 EXHIBIT B CERTIFICATE OF AMENDMENT TO THE SERIES F PREFERRED STOCK CERTIFICATE OF DESIGNATION OF AEGIS COMMUNICATIONS GROUP, INC. Aegis Communications Group, Inc., a corporation organized and existing under the Delaware General Corporation Law (the "Corporation"), DOES HEREBY CERTIFY: FIRST: that the Board of Directors of the Corporation, at a special meeting of the Board of Directors called for such purpose, duly adopted resolutions by unanimous vote authorizing the proposed amendments to the Series F Preferred Stock Certificate of Designation, declaring said amendment to be advisable, and directing that said amendments be submitted to the stockholders of the Corporation for their consideration. In applicable part, the resolutions authorizing the amendments are as follows: "RESOLVED, that the amendment of the Company's Series F Preferred Stock Certificate of Designation to adjust the conversion rate of the shares of Series F Preferred Stock such that, following such amendment, the outstanding 23,375 shares of Series F Preferred Stock, which will constitute all of the remaining outstanding shares of Series F Preferred Stock, will be convertible into 46,910,503 shares of Common Stock, and shall be converted into such shares on the Subsequent Closing Date, subject to the completion and effectiveness of the Thayer Condition, shall, through a Certificate of Amendment to the Series F Preferred Stock Certificate of Designation, be and it hereby is approved and adopted; RESOLVED, that the amendment of the Company's Series F Preferred Stock Certificate of Designation to remove subsections 7(d) and 7(g) from the Series F Preferred Stock Certificate of Designation be and it hereby is approved and adopted; RESOLVED, that the amendments to the Series F Certificate of Designation described above be submitted for approval to the holders of outstanding stock of the Company having not less than the minimum number of votes that would be necessary to authorize or take such actions; RESOLVED, that each of the officers of the Company is hereby authorized, empowered and directed to execute, verify, acknowledge, certify, deliver and file such other agreements, instruments, documents, and certificates, to attach to these resolutions such additional resolutions, and to take or cause to be taken such other actions as may be necessary, desirable, or appropriate to effect the purposes and intentions of the foregoing resolutions." SECOND: that the amendment of the Series F Certificate of Designation would add the following definitions: 8 "Note and Warrant Purchase Agreement" means that certain Note and Warrant Purchase Agreement by and among the Corporation, Deutsche Bank AG--London acting through DB Advisors, LLC as investment advisor and Essar Global Limited, dated as of November 5, 2003. "Subsequent Closing Date" has the meaning provided in the Note and Warrant Purchase Agreement. THIRD: that the amendment of the Series F Certificate of Designation would strike in its entirety Section 7(b) and insert in its place a new Section 7(b), as follows: (b) Conversion Rate. The 23,375 outstanding shares of Series F Preferred Stock will be convertible into 46,910,503 shares of Common Stock of the Company, and shall be converted into such shares on the Subsequent Closing Date (as defined in the Note and Warrant Purchase Agreement) subject to the completion and effectiveness of the Thayer Condition (as defined in the Note and Warrant Purchase Agreement). FOURTH: that the amendment of the Series F Certificate of Designation would strike in their entirety subsections 7(d) and 7(g) of the Series F Certificate of Designation and would replace each subsection with "[intentionally omitted]." FIFTH: that thereafter, stockholders of said Corporation holding the necessary number of shares as required by statute, duly adopted and approved said amendments in a written consent executed in accordance with Section 228 of the Delaware General Corporation Law. SIXTH: that said amendment was duly adopted in accordance with the provisions of Section 242 of the Delaware General Corporation Law. IN WITNESS WHEREOF, the Board of Directors of the Company has caused this Certificate of Amendment to be executed and filed on this ___ day of ____________, 2003. AEGIS COMMUNICATIONS GROUP, INC., a Delaware corporation By: ----------------------------------------------- Herman M. Schwarz President and Chief Executive Officer 9 -----END PRIVACY-ENHANCED MESSAGE-----