EXHIBIT 10.5
AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT TO RIGHTS AGREEMENT (this "Amendment"), dated to be
effective as of August 25, 1999, is between AEGIS COMMUNICATIONS GROUP, INC.,
a Delaware corporation (the "Company"), and ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, an
Illinois banking corporation (the "Rights Agent"), at the direction of the
Company.
WHEREAS, the Company and the Rights Agent entered into a Rights
Agreement dated as of December 16, 1998 (the "Rights Agreement");
WHEREAS, SECTION 26 of the Rights Agreement permits the amendment of
the Rights Agreement by the Board of Directors of the Company;
WHEREAS, the Company's Board of Directors has approved the sale of
Series F Senior Voting Convertible Preferred Stock (the "Preferred Stock") to
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"), and 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, the "Questor Investors") pursuant to the Series F
Senior Voting Convertible Preferred Stock Purchase and Registration Rights
Agreement dated August 25, 1999 by and among the Company, the Questor
Investors and certain existing stockholders of the Company (the "Stock
Agreement);
WHEREAS, pursuant to a resolution duly adopted on August 20, 1999,
the Board of Directors of the Company adopted and authorized the amendment of
the Rights Agreement so that the Rights Agreement will, among other things,
comply with the terms and conditions of the Stock Agreement;
WHEREAS, the Board of Directors of the Company has resolved and
determined that such amendment is desirable and consistent with, and for the
purpose of fulfilling, the objectives of the Board of Directors in connection
with the original adoption of the Rights Agreement;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. AMENDMENT OF SECTION 1.
a. SECTION 1(a) of the Rights Agreement is hereby amended in its
entirety to read as follows:
(a) "ACQUIRING PERSON" means any Person that, together with
all Affiliates and Associates of such Person, is the Beneficial
Owner of 20% or more of the shares of Common Stock then
outstanding, but does not include (i) the Company; (ii) any
Subsidiary of the Company; (iii) any employee benefit plan of the
Company or of any Subsidiary of the Company; (iv) any Person
organized, appointed, or established by the Company for or
pursuant to the terms of any such
plan; (v) ▇▇▇▇▇▇ Equity Investors III, L.P., ▇▇▇▇▇▇ ▇▇▇▇▇, ITC
Holding Company, Codinvest Limited, Questor Partners Fund II,
L.P., Questor Side-by-Side Partners II, L.P., Questor
Side-by-Side Partners II 3(c)(1), L.P., or any Affiliate or
Associate of such Persons; (vi) any Person that has reported
or is required to report such beneficial ownership on Schedule
13G (or any comparable or successor report) or on Schedule 13D
under the Exchange Act (or any comparable or successor report)
under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), which Schedule 13D does not state any
intention to, or reserve the right to, control or influence
the management or policies of the Company or engage in any of
the actions specified in Item 4 of such Schedule 13D (other
than the disposition of the Common Stock) and, within five (5)
Business Days (as defined below) of being requested by the
Company to advise it regarding the same, certifies to the
Company that such Person acquired beneficial ownership of
shares of Common Stock in excess of 20% inadvertently or
without knowledge of the terms of the Rights and such
certification is accepted as true by the Board of Directors
acting in good faith, such Person divests as promptly as
practicable a sufficient number of shares of Common Stock so
that such Person no longer holds in excess of 20% of the
Common Stock then outstanding, and that, together with all of
such Person's Affiliates and Associates, thereafter does not
acquire additional shares of Common Stock to become the
Beneficial Owner of 20% or more of the shares of Common Stock
then outstanding; provided, however, that if the Person
requested to so certify fails to do so within five Business
Days, then such Person will become an Acquiring Person
immediately after such five Business-Day Period; (vii) any
Person that becomes an Acquiring Person solely as a result of
a reduction in the number of outstanding shares of Common
Stock in a transaction that is approved by the Board of
Directors, provided that such Person will immediately be an
Acquiring Person in the event such Person thereafter acquires
any additional shares of Common Stock (other than as a result
of a stock split or stock dividend) while the Beneficial Owner
of 20% or more of the shares of Common Stock then outstanding;
and (viii) any Person that is the Beneficial Owner as of the
date of this Agreement of in excess of 20% of the outstanding
Common Stock that has publicly disclosed such Beneficial
Ownership.
b. SECTION 1(h) of the Rights Agreement is hereby amended in its
entirety to read as follows:
(h) "EXCLUDED PERSON" means each of (i) ▇▇▇▇▇▇ Equity
Investers III, L.P., ▇▇▇▇▇▇ ▇▇▇▇▇, ITC Holding Company, Codinvest
Limited, Questor Partners Fund II, L.P., Questor Side-by-Side
Partners II, L.P., Questor Side-by-Side Partners II 3(c)(1),
L.P., and any Affiliate or Associate of such Person and such
Person's spouse; (ii) such Person's lineal descendants and their
spouses with respect to Beneficial Ownership of Common Stock
received from such Person, such Person's spouse, and such
Person's lineal descendants or their spouses; (iii) any Person
established by one or more of the Persons referred to in CLAUSES
(i) or (ii) for charitable or estate planning purposes; and (iv)
any other Person controlled
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by one or more persons referred to in CLAUSES (i), (ii), or
(iii) or in which the Persons referred to in CLAUSES (i),
(ii), or (iii) beneficially own in excess of 51% of the
beneficial interest.
2. AMENDMENT OF SECTION 7(a).
SECTION 7(a) of the Rights Agreement is hereby amended in its entirety
to read as follows:
(a) Subject to SECTION 7(e), the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby
(except as otherwise provided in this Agreement including,
without limitation, the restrictions on exercisability set forth
in SECTION 9(c), SECTION 11(a)(iii), and SECTION 23(a)) in whole
or in part at any time after the Distribution Date upon surrender
of the Rights Certificate, with the form of election to purchase
and the certificate on the reverse side of the Rights Certificate
duly executed, to the Rights Agent at the principal office or
offices of the Rights Agent designated for such purpose, together
with payment of the aggregate Purchase Price with respect to the
total number of one one-thousandths of a share of Preferred Stock
(or other securities, cash, or other property, as the case may
be) as to which such surrendered Rights are then exercisable, at
or prior to the earlier of (i) the Closing as defined in the
Stock Agreement, (ii) the Close of Business on December 16, 2008,
(the "FINAL EXPIRATION DATE"),or (iii) the time at which the
Rights are redeemed as provided in SECTION 23 (the earlier of the
times referred to in CLAUSES (i) (ii) and (iii) being referred to
as the "EXPIRATION DATE")).
3. EFFECTIVENESS.
This Amendment to the Rights Agreement shall be effective as of the
date of this Amendment, and all references to the Rights Agreement shall, from
and after such time, be deemed to be references to the Rights Agreement as
amended hereby.
4. CERTIFICATION.
The undersigned officer of the Company certifies by execution hereof
that this Amendment is in compliance with the terms of SECTION 26 of the Rights
Agreement.
5. MISCELLANEOUS.
This Amendment may be executed in any number of counterparts, each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument. If
any term, provision, covenant or restriction of this Amendment is held by a
court of competent jurisdiction or other authority to be invalid, illegal, or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date and year first above written.
AEGIS COMMUNICATIONS GROUP., INC.
By: ________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as
Rights Agent
By: _________________________________
Name: _________________________________
Title: _________________________________
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