exv4w5



 





EXHIBIT 4.5




Execution Copy




 





REGISTRATION RIGHTS AND COORDINATION AGREEMENT




among




WEST CORPORATION,

THL INVESTORS, QUADRANGLE INVESTORS

OTHER INVESTORS, FOUNDERS AND MANAGERS

NAMED HEREIN




DATED AS OF OCTOBER 24, 2006




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	1. EFFECTIVENESS; DEFINITIONS
	 	 	2	 
	1.1. Closing
	 	 	2	 
	1.2. Definitions
	 	 	2	 
	 
	 	 	 	 
	2. TRANSFER RESTRICTIONS
	 	 	2	 
	2.1. Permitted Rule 144 Transfers and Block Sales
	 	 	2	 
	2.2. Permitted Transferees
	 	 	4	 
	2.3. Distributions to Limited Partners or Members
	 	 	4	 
	2.4. Transfers and Holder Lock-up
	 	 	4	 
	 
	 	 	 	 
	3. REGISTRATION RIGHTS
	 	 	4	 
	3.1. Demand Registration Rights for Registrable Securities
	 	 	5	 
	3.2. Piggyback Registration Rights
	 	 	8	 
	3.3. Certain Other Provisions
	 	 	10	 
	3.4. Indemnification and Contribution
	 	 	15	 
	3.5. Permitted Registration Rights Assignees
	 	 	19	 
	 
	 	 	 	 
	4. REMEDIES
	 	 	19	 
	4.1. Generally
	 	 	19	 
	 
	 	 	 	 
	5. PERMITTED TRANSFEREES
	 	 	19	 
	5.1. Transfers by Investors
	 	 	19	 
	5.2. Transfers by Founders
	 	 	20	 
	5.3. Transfers by Managers
	 	 	20	 
	 
	 	 	 	 
	6. AMENDMENT, TERMINATION, ETC
	 	 	20	 
	6.1. Oral Modifications
	 	 	20	 
	6.2. Written Modifications
	 	 	20	 
	6.3. Effect of Termination
	 	 	21	 
	 
	 	 	 	 
	7. DEFINITIONS
	 	 	21	 
	7.1. Certain Matters of Construction
	 	 	21	 
	7.2. Definitions
	 	 	22	 
	 
	 	 	 	 
	8. MISCELLANEOUS
	 	 	27	 






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	 	 	Page
	8.1. Authority; Effect
	 	 	27	 
	8.2. Notices
	 	 	27	 
	8.3. Merger; Binding Effect, Etc
	 	 	30	 
	8.4. Descriptive Headings
	 	 	30	 
	8.5. Counterparts
	 	 	30	 
	8.6. Severability
	 	 	30	 
	8.7. No Recourse
	 	 	30	 
	8.8. Aggregation of Shares
	 	 	30	 
	 
	 	 	 	 
	9. GOVERNING LAW
	 	 	31	 
	9.1. Governing Law
	 	 	31	 
	9.2. Consent to Jurisdiction
	 	 	31	 
	9.3. WAIVER OF JURY TRIAL
	 	 	32	 
	9.4. Exercise of Rights and Remedies
	 	 	32	 






ii









 








REGISTRATION RIGHTS AND COORDINATION AGREEMENT




     This Registration Rights and Coordination Agreement (the “Agreement”) is made as of
October 24, 2006 by and among:




	 	(i)	 	West Corporation (the “Company”);
	 
	 	(ii)	 	Thomas H. Lee Equity Fund VI, L.P., Thomas H. Lee Parallel Fund VI, L.P.,
Thomas H. Lee Parallel (DT) Fund VI, L.P., THL Equity Fund VI Investors (West), L.P.,
THL Coinvestment Partners, L.P., Putnam Investments Holdings, LLC, Putnam Investments
Employees’ Securities Company III LLC, THL Fund VI Bridge Corp., THL Parallel Fund VI
Bridge Corp., THL DT Fund VI Bridge Corp. and each other Person executing this
Agreement and listed as a THL Investor on the signature pages hereto (collectively with
their Permitted Transferees, the “THL Investors”);
	 
	 	(iii)	 	Quadrangle Capital Partners II LP, Quadrangle Capital Partners II-A LP and
Quadrangle Select Partners II LP and each other Person executing this Agreement and
listed as a Quadrangle Investor on the signature pages hereto (collectively with their
Permitted Transferees, the “Quadrangle Investors”);
	 
	 	(iv)	 	Any other Persons who from time to time become party hereto by executing a
counterpart signature page hereof and are designated by the Board as “Other Investors”
(collectively, with their Permitted Transferees, the “Other Investors” and,
together with the THL Investors and the Quadrangle Investors, the “Investors”);
	 
	 	(v)	 	Gary L. West and Mary E. West (the “Founders”);
	 
	 	(vi)	 	Thomas B. Barker, Nancee R. Berger, J. Scott Etzler, Jon R. Hanson, Robert E.
Johnson, Mark V. Lavin, Michael E. Mazour, Paul M. Mendlik, Pam Mortenson, David C.
Mussman, James Richards, Steven M. Stangl and Michael M. Sturgeon and such other
Persons who are listed on the signature pages hereof as “Managers” or who from time to
time become party hereto by executing a counterpart signature page hereof and are
designated by the Board as “Managers” (the “Managers”); and
	 
	 	(vii)	 	such other Persons, if any, that from time to time become party hereto as
holders of Other Holder Shares (as defined below) pursuant to Section 3.5 solely in the
capacity of permitted assignees with respect to certain registration rights hereunder
(collectively, the “Other Holders”).





RECITALS




     1. On or about the date hereof, the Company has consummated a leveraged recapitalization
transaction on the terms and subject to the conditions of an Agreement and Plan



 









 




of Merger dated May 31, 2006 (the “Recapitalization Agreement”) by and between the
Company and Omaha Acquisition Corp. (“Newco”).




     2. The Company’s Common Stock and all Options, Warrants and Convertible Securities issued or
reserved for issuance will be held (or reserved for issuance), as of the date hereof after giving
effect to the Closing under the Recapitalization Agreement, as set forth on Schedule I hereto. In
connection with the purchase of such securities, the Company, and the Investors together with
certain other stockholders of the Company, have entered into a stockholders agreement dated as of
the date hereof (the “Stockholders Agreement”).



     3. The parties believe that it is in the best interests of the Company and the Stockholders to
set forth their agreements regarding registration rights and coordination of certain sales of
Common Stock of the Company.



AGREEMENT




     Therefore, the parties hereto hereby agree as follows:



1. EFFECTIVENESS; DEFINITIONS.




     1.1. Closing. This Agreement shall become effective upon the consummation of the
closing under the Recapitalization Agreement (the “Closing”).



     1.2. Definitions. Certain terms are used in this Agreement as specifically defined
herein. These definitions are set forth or referred to in Section 7 hereof.



2. TRANSFER RESTRICTIONS.




     2.1. Permitted Rule 144 Transfers and Block Sales. No Stockholder shall Transfer any
or all of its Shares after the closing of the Initial Public Offering pursuant to Rule 144 or in a
block sale to a financial institution, in each case other than in compliance with Section 2.1.1 or
2.1.2 hereof. Shares Transferred pursuant to this Section 2.1 shall conclusively be deemed
thereafter not to be Shares under this Agreement.




     2.1.1. Permitted Transfers Pursuant to Rule 144. From time to time after the
Initial Public Offering, (a) during all such times as the Investors hold at least
twenty-five percent (25%) of the Initial Investor Shares, the Majority Investors or (b) at
all other times, the Majority Stockholders, may determine to require the Stockholders to
make reasonable efforts to coordinate their efforts to Transfer Shares pursuant to Rule
144 (“144 Coordination”) or to discontinue such requirement. 144 Coordination
shall be in effect until such time, if ever, as the Majority Investors (or, if at a time
when the Investors no longer hold at least twenty-five percent (25%) of the Initial
Investor Shares, the Majority Stockholders) provide a subsequent notice to the
Stockholders that such 144 Coordination is discontinued. Thereafter, the Majority
Investors (or, if at a time when the Investors no longer hold at least twenty-five percent
(25%) of the Initial Investor Shares, the Majority Stockholders) may reinstitute and
discontinue 144 Coordination from time to time by providing notice to each Stockholder.



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     (a) At any time when 144 Coordination is in effect, the Stockholders will make
reasonable efforts to coordinate their efforts to Transfer Shares pursuant to Rule
144, and each Specified Holder promptly shall notify each Related Stockholder (i)
when it has commenced a measurement period for purposes of the Rule 144 group volume
limit in connection with a Sale that is subject to such limit and (ii) what the
volume limit for that measurement period, determined as of its commencement, will
be. When 144 Coordination is in effect, each Related Stockholder shall be entitled
to effect Sales that are subject to the Rule 144 group volume limit pro rata during
the applicable measurement period based on its percentage ownership of Shares held
by the Specified Holder and all Related Stockholders at the start of such
measurement period. In the event any Related Stockholder agrees to forego its full
pro rata share of the Rule 144 group volume limit by written notice to the Specified
Holder and all other Related Stockholders, the Shares held by such forfeiting
Related Holder at the start of such measurement period shall be excluded from such
calculation of percentage ownership.




     (b) The provisions of this Section 2.1.1 shall not apply to any Transfer of
Shares (i) in a Public Offering, (ii) not subject to volume limitation under Rule
144 or (iii) at any time when 144 Coordination is not in effect.




     (c) For purposes of this Section 2.1.1, a “Specified Holder” means a
holder of Shares whose sale of Shares pursuant to Rule 144 would be subject to
aggregation with another Stockholder (each such other Stockholder being a
“Related Stockholder”).




     (d) Notwithstanding the foregoing, a Stockholder may opt out of 144
Coordination with respect to any period of time if such Stockholder delivers a
notice to the other Stockholders irrevocably committing not to Transfer Shares
pursuant to Rule 144 during such period.




     (e) If, at any time after the Initial Public Offering, 144 Coordination is not
in effect, (a) during all such times as the Investors hold at least twenty-five
percent (25%) of the Initial Investor Shares, the Majority Investors or (b) at all
other times, the Majority Stockholders, may determine to require the Stockholders to
provide each other Stockholder with at least ten Business Days written notice prior
to when such Stockholder plans to Transfer any or all of its Shares pursuant to Rule
144, but no coordination of Sales shall be required.




     2.1.2. Block Sales. After the Initial Public Offering, each Stockholder (the
“Initiating Block Transferor”) shall notify each other Stockholder (the
“Potential Block Participant”) when it plans to Transfer any or all of its Shares
pursuant to a block trade of at least 10,000 shares or with a market value of at least
$200,000. Each Potential Block Participant shall be entitled to participate in such block
transfer pro rata based on its percentage ownership of Shares held by all Stockholders at
the time of such proposed transfer. In the event any Potential Block Participant agrees
to forego its full pro rata share of the block sale by written notice to the Initiating
Block Transferor and



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all other Potential Block Participants, the remainder shall be re-allocated pro rata
among the Initiating Block Transferor and all other Potential Block Participants in like
manner (except that the Shares held by such forfeiting Potential Block Participant shall
be excluded from such calculation).



     2.2. Permitted Transferees. Any Permitted Transferee receiving Shares from a
Stockholder in a Transfer shall be subject to the terms and conditions of, and be entitled to the
benefits and rights of, and to enforce, this Agreement to the same extent, and in the same
capacity, as the Stockholder that Transfers the Shares to such Permitted Transferee. Prior to the
initial Transfer of any Shares to any Permitted Transferee pursuant to the Stockholders Agreement,
and as a condition thereto, each holder of Shares effecting such Transfer shall (i) cause such
Permitted Transferee to deliver to the Company and each of the Stockholders (other than the
transferor) its written agreement, in form and substance reasonably satisfactory to the Company, to
be bound by the terms and conditions of this Agreement to the extent described in the preceding
sentence and (ii) remain directly liable for the performance by the Permitted Transferee of all
obligations of such Permitted Transferee under this Agreement.



     2.3. Distributions to Limited Partners or Members. Each Investor agrees that, until
the earlier of (a) the third anniversary of the Initial Public Offering and (b) the date on which
the Investors own less than five percent (5%) of all Outstanding Shares, such Investor shall (i)
provide at least ten Business Days prior notice to each other Stockholder who holds (individually
or together with its Affiliate Funds or other Affiliates) at least five percent (5%) of all
Outstanding Shares prior to making any distribution of its then unregistered Shares to its
partners, members or stockholders (a “Distribution”) and (ii) use reasonable efforts to
coordinate in good faith the timing and amount of any such Distributions with the other Investors’
plans to distribute Shares to their partners, members or stockholders or to sell Shares pursuant to
Rule 144 or otherwise. If requested by any Investor effecting a Distribution, the Company and its
subsidiaries shall take or cause to be taken all such reasonable actions as may be necessary or
desirable in order expeditiously to consummate such Distribution, including executing,
acknowledging and delivering any consents, waivers and other documents or instruments as may be
reasonably necessary or desirable and instructing the Company’s transfer agent and legal counsel to
provide all reasonable assistance with the consummation of such Distribution, including the
delivery of any legal opinions that may be required for the removal of restrictive legends or
otherwise.



     2.4. Transfers and Holder Lock-up. No Investor shall Transfer Shares in a transaction
that would have violated Section 6 of the Stockholders Agreement (Holder Lock-up) or a lock-up
agreement entered into pursuant thereto but for the fact that such Investor has been granted
permission to make such Transfer or has been released from the restrictions under Section 6 or such
lock-up agreement unless each Investor is granted similar permission or has been similarly
released.


3. REGISTRATION RIGHTS. The Company will perform and comply, and cause each of its subsidiaries to
perform and comply, with such of the following provisions as are applicable to it. Each Holder
will perform and comply with such of the following provisions as are applicable to such Holder.




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3.1. Demand Registration Rights for Registrable Securities.





     3.1.1. Investors and Founders. One or more Investors or Founders and their
direct or indirect Permitted Registration Rights Assignees (the “Initiating
Stockholders”), by notice to the Company specifying the intended method or methods of
disposition, may request that the Company effect the registration under the Securities Act
for a Public Offering of all or a specified part of the Registrable Securities held by
such Initiating Stockholders; provided, however, that, except as otherwise
provided in this Section 3.1.1 and subject to Section 3.2 below, the Initial Public
Offering and the first three (3) registrations of Registrable Securities under this
Section 3.1.1. (the “Initial Post-IPO Demand Rights”) may be initiated only by the
Majority Initial Investors; provided, further, that any registration of
Registrable Securities (i) which does not become and remain effective for at least 270
days in accordance with the provisions of this Section 3 (or such shorter period which
will terminate when all Registrable Securities covered by such Registration Statement have
been sold) or (ii) pursuant to which the Majority Initial Investors and all other Holders
joining therein are not able to include at least 90% of the Registrable Securities which
they desired to include, shall not be included in the calculation of the number of Initial
Post-IPO Demand Rights. The Majority Initial Investors’ exclusive right to the Initial
Post-IPO Demand Rights will terminate (whether or not the Majority Initial Investors have
exercised all three of the Initial Post-IPO Demand Rights), and thereafter any Investor or
Founder may exercise his, her or its rights under this Section 3.1.1:




     (a) at any time on or following the fourth anniversary of the Initial Public
Offering; or




     (b) if the THL Investors and Quadrangle Investors collectively no longer hold
at least twenty-five percent (25%) of the Initial Investor Shares and the THL
Investors and Quadrangle Investors shall have already received in respect of all
Investor Shares (whether from sale proceeds, dividends or other distributions paid
in respect of Shares) an aggregate amount of cash equal to the total cost of the
Initial Investor Shares (whether such cost was paid by the THL Investors and
Quadrangle Investors (i) in the form of cash subscriptions in the Company’s
securities, or through exchange or conversion (by operation of law or otherwise) of
existing securities of Newco in which case the cost of such other securities will be
deemed to carry over to the Shares for purposes of this provision) at the time of
the initial purchase thereof (subject to appropriate adjustments for stock splits,
recapitalizations and other similar events).




     3.1.2. Upon receipt by the Company of a notice pursuant to Section 3.1.1, the Company
will use its commercially reasonable efforts to (i) effect the registration under the
Securities Act (including by means of a shelf registration pursuant to Rule 415 under the
Securities Act if so requested by any Investor or Founder after the fourth anniversary of
the Initial Public Offering if the Company is then eligible to use such registration) of
the Registrable Securities that the Company has been requested to register by such
Investor or Founder, together with all other Registrable Securities that the Company has
been requested to register pursuant to Section 3.2 by other Holders,



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all to the extent required to permit the disposition of the Registrable Securities
that the Company has been so requested to register as promptly as is reasonably practical,
and (ii) obtain acceleration of the effective date of the Registration Statement relating
to such registration as promptly as is reasonably practical.




     3.1.3. The Company shall not be obligated to take any action to effect any such
registration pursuant to Section 3.1.2:




     (a) unless the value of Registrable Securities to be included on such
Registration Statement is at least seventy-five million dollars ($75,000,000) or
such lower amount as agreed by the Majority Investors during all such times as the
Majority Investors have the exclusive right to the Initial Post-IPO Demand Rights,
and thereafter by the Majority Stockholders;




     (b) if there has been a registration pursuant to this Section 3.1 (other than
by means of a shelf registration pursuant to Rule 415 under the Securities Act)
within the preceding 180 days (unless otherwise consented to by the Majority
Investors during all such times as the Majority Investors have the exclusive right
to the Initial Post-IPO Demand Rights, and thereafter by the Majority Stockholders);




     (c) during the effectiveness of any Principal Lock-Up Agreement entered into in
connection with any Registration Statement pertaining to an underwritten public
offering of securities of the Company for its own account (other than a Rule 145
Transaction, or a registration relating solely to employee benefit plans).




     3.1.4. Form. Except as otherwise provided above or required by law, the
Company will use commercially reasonable efforts to effect each registration requested
pursuant to Section 3.1.1 by filing with the Commission a Registration Statement on Form
S-3 (or any other form which includes substantially the same information as would be
required to be included in a Registration Statement on such form as currently constituted)
pursuant to Section 3.3.2(a); provided that if any registration requested pursuant
to this Section 3.1 is proposed to be effected on Form S-3 (or any successor or similar
shortform Registration Statement) and is in connection with an underwritten offering, and
if the managing underwriter shall advise the Company in writing that, in its opinion, it
is of material importance to the success of such proposed offering to file a Registration
Statement on Form S-1 (or any successor or similar Registration Statement) or to include
in such Registration Statement information not required to be included pursuant to Form
S-3 (or any successor or similar shortform Registration Statement), then the Company will
file a Registration Statement on Form S-1 or supplement Form S-3 (or any successor or
similar shortform Registration Statement) as reasonably requested by such managing
underwriter. The Company shall use commercially reasonable efforts to prepare and file
with the Commission such amendments and supplements to such Registration Statement and
prospectus as required by Section 3.3.2(b).



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     3.1.5. Payment of Expenses. The Company shall pay all Registration Expenses
in connection with registrations and sales of Registrable Securities pursuant to this
Section 3.1, including all Registration Expenses (other than that portion of any fees and
disbursements of counsel, if any, that does not constitute Registration Expenses) incurred
in connection with each registration of Registrable Securities requested pursuant to this
Section 3.1.




     3.1.6. Additional Procedures. In the case of a registration pursuant to
Section 3.1 hereof, whenever any party who may demand a registration pursuant to Section
3.1.1 (a “Demand Party”) shall request that such registration shall be effected
pursuant to an underwritten offering, the Company shall include such information in the
written notices to Holders referred to in Section 3.2. In such event, the right of any
Holder to have securities owned by such Holder included in such registration pursuant to
Section 3.1 shall be conditioned upon such Holder’s participation in such underwriting and
the inclusion of such Holder’s Registrable Securities in the underwriting (unless
otherwise mutually agreed upon by the Principal Participating Holders and such Holder).
The Company together with the Holders proposing to distribute their securities through the
underwriting will enter into an underwriting agreement with the underwriters for such
offering containing such representations and warranties by the Company and such Holders
and such other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including customary indemnity and
contribution provisions, including indemnity and contribution provisions for the benefit
of the underwriters on the same terms as those provided in Section 3.4 (treating each
underwiter as a “Covered Person” for purposes thereof) (subject, in each case, to the
limitations on such liabilities set forth in this Agreement).




     3.1.7. Suspension of Registration. If the filing, initial effectiveness or
continued use of a Registration Statement, including a shelf Registration Statement
pursuant to Rule 415 under the Securities Act, in respect of a registration pursuant to
this Section 3.1 at any time would require the Company to make a public disclosure of
material non-public information, which disclosure in the good faith judgment of the Board
(after consultation with external legal counsel) (i) would be required to be made in any
Registration Statement so that such Registration Statement would not be materially
misleading, (ii) would not be required to be made at such time but for the filing,
effectiveness or continued use of such Registration Statement and (iii) would have a
material adverse effect on the Company or its business or on the Company’s ability to
effect a material proposed acquisition, disposition, financing, reorganization,
recapitalization or similar transaction, then the Company may, upon giving prompt written
notice of such action to the Holders participating in such registration, delay the filing
or initial effectiveness of such Registration Statement, or suspend use of such
Registration Statement; provided, that the Company shall not be permitted to do so
(i) more than two times during any 12 month period, (ii) for a period exceeding 30 days on
any one occasion or (iii) for a period exceeding 125 days in any 12 month period. In the
event the Company exercises its rights under the preceding sentence, such Holders agree to
suspend, promptly upon their receipt of the notice referred to above, their use of any
prospectus relating to such registration in connection with any sale or offer to sell
Registrable Securities. The Company shall promptly notify such Holders of the



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expiration of any period during which it exercised its rights under this Section
3.1.7. The Company agrees that, in the event it exercises its rights under this Section
3.1.73.1.5, it shall, within 30 days following such Holders’ receipt of the notice of
suspension, update the suspended Registration Statement as may be necessary to permit the
Holders to resume use thereof in connection with the offer and sale of their Registrable
Securities in accordance with applicable law.



3.2. Piggyback Registration Rights.





     3.2.1. Piggyback Registration.




     (a) General. Each time the Company proposes to register any shares of
Common Stock under the Securities Act on a form which would permit registration of
Registrable Securities for sale to the public, for its own account and/or for the
account of any other Person (pursuant to Section 3.1 or otherwise) for sale in a
Public Offering, the Company will give reasonably prompt notice to all Holders of
its intention to do so. Any Holder may, by written response delivered to the
Company within 20 days after the date of delivery of such notice, request that all
or a specified part of such Holder’s Registrable Securities be included in such
registration. The Company thereupon will use its best efforts to cause to be
included in such registration under the Securities Act all Registrable Securities
which the Company has been so requested to register by such Holders, to the extent
required to permit the disposition (in accordance with the methods to be used by the
Company or, pursuant to Section 3.1, other Holders in such Public Offering) of the
Registrable Securities to be so registered; provided that (i) if, at any
time after giving written notice of its intention to register any securities, the
Company shall determine for any reason not to proceed with the proposed registration
of the securities to be sold by it, the Company may, at its election, give written
notice of such determination to each Holder and, thereupon, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), and (ii) if such registration involves an underwritten
offering, all Holders requesting to be included in the Company’s registration must
sell their Registrable Securities to the underwriters selected by the Company on the
same terms and conditions as apply to the Company (with such differences as may be
customary or appropriate in combined primary and secondary offerings) or, in the
case of a registration initiated pursuant to Section 3.1.1, the Principal
Participating Holders. No registration of Registrable Securities effected under
this Section 3.2 shall relieve the Company of any of its obligations to effect
registrations of Registrable Securities pursuant to Section 3.1 hereof.




     (b) Excluded Transactions. The Company shall not be obligated to
effect any registration of Registrable Securities under this Section 3.2 incidental
to the registration of any of its securities in connection with:



     (i) Any Public Offering relating exclusively to employee benefit plans or dividend
reinvestment plans;



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     (ii) Any Public Offering relating exclusively to the acquisition or merger after the date
hereof by the Company or any of its subsidiaries of or with any other businesses except to the
extent such Public Offering is for the sale of securities in cash; or



     (iii) The Initial Public Offering, unless Shares are being included as part of a secondary
offering in such Initial Public Offering, in which case the Founders shall be entitled to register
Shares in the Initial Public Offering in an amount equal to the greater of (x) the Founders Pro
Rata Portion and (y) Shares with an aggregate fair market value (based on the price to the public
of the Shares in the Initial Public Offering) of seventy-five million dollars ($75,000,000);
provided, that even if such offering is the Initial Public Offering and has been initiated
pursuant to Section 3.1.1, the Company shall not be obligated to effect any registration of
Registrable Securities held by a Manager under this Section 3.2 if the lead underwriters determine
that inclusion of Registrable Securities held by Managers would materially adversely affect the
marketability or pricing of the offering.




     3.2.2. Payment of Expenses. The Company will pay all Registration Expenses
in connection with registrations of Registrable Securities pursuant to this Section 3.2.




     3.2.3. Additional Procedures. Holders participating in any Public Offering
pursuant to this Section 3.2 shall take all such actions and execute all such documents
and instruments that are reasonably requested by the Company to effect the sale of their
Registrable Securities in such Public Offering, including being parties to the
underwriting agreement entered into by the Company and any other selling Stockholders in
connection therewith (including customary selling stockholder representations, warranties,
indemnifications and “lock-up” agreements) for the benefit of the underwriters contained
therein; provided, however, that (a) with respect to individual
representations, warranties, indemnities and agreements of sellers of Registrable
Securities in such Public Offering, the aggregate amount of such liability shall not
exceed such Holder’s net proceeds from such offering and (b) to the extent selling
Stockholders give further representations, warranties and indemnities, then with respect
to all other representations, warranties and indemnities of sellers of shares in such
Public Offering, the aggregate amount of such liability shall not exceed the lesser of (i)
such Holder’s pro rata portion of any such liability, in accordance with such Holder’s
portion of the total number of Registrable Securities included in the offering, and (ii)
such Holder’s net proceeds from such offering.




     3.2.4. Registration Statement Form. The Company shall select the
Registration Statement form for any registration pursuant to this Section 3.2 (other than
a registration that is also pursuant to Section 3.1); provided that if any registration
requested pursuant to this Section 3.2 is proposed to be effected on Form S-3 (or any
successor form) and is in connection with an underwritten offering, and if the managing
underwriter shall advise the Company in writing that, in its opinion, it is of material
importance to the success of such proposed offering to include in such Registration
Statement information not required to be included pursuant to such form, then the Company
will supplement such Registration Statement as reasonably requested by such managing
underwriter. The Company will use commercially reasonable efforts to qualify as a
well-known seasoned issuer (“WKSI”) as such item is defined in Rule 405



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under the Securities Act as soon as practicable after the Initial Public Offering and
to remain a WKSI as long as this Agreement is in effect.



3.3. Certain Other Provisions.





     3.3.1. Underwriter’s Cutback. In the event that an underwriter determines
that marketing factors (including an adverse effect on the per share offering price) exist
that would require a limitation of the number of shares to be underwritten in any
registration of shares, and, as a result, decides to limit the number of shares included
in such registration by excluding any or all Registrable Securities from such
registration, the following provisions shall apply. If the registration in question
involves a registration for sale of securities for the Company’s own account, then the
number of shares which the Company seeks to have registered in such registration shall not
be subject to exclusion, in whole or in part, under this Section 3.3.1. Upon receipt of
notice from the underwriter of the need to reduce the number of shares to be included in
the registration, the Company shall advise all holders of the Company’s securities that
would otherwise be registered and underwritten pursuant hereto, and the number of shares
of such securities, including Registrable Securities, that may be included in the
registration shall be allocated in the following manner, unless the underwriter shall
determine that marketing factors require a different allocation: shares, other than
Registrable Securities, requested to be included in such registration by other
Stockholders shall be excluded unless the Company, with the consent of the parties
required to approve any amendment or waiver of this Agreement pursuant to Section 6.2, has
granted registration rights which are to be treated on an equal basis with Registrable
Securities for the purpose of the exercise of the underwriter cutback (such shares
afforded such equal treatment being “Parity Shares”); and, if a limitation on the
number of shares is still required, the number of Registrable Securities, Parity Shares
and other shares of Common Stock that may be included in such registration shall be
allocated among the holders thereof in proportion, as nearly as practicable, as follows:




     (a) there shall be first allocated to each such holder requesting that its
Registrable Securities or Parity Shares be registered in such registration a number
of such shares to be included in such registration equal to the lesser of (A) the
number of such shares requested to be registered by such holder, and (B) a number of
such shares equal to such holder’s Pro Rata Portion;




     (b) the balance, if any, not allocated pursuant to clause (a) above shall be
allocated to those holders who have requested to register a number of such
Registrable Securities or Parity Shares in excess of such holder’s Pro Rata Portion,
pro rata to each such holder based upon the number of Registrable Securities and
Parity Shares held by such holder, or in such other manner as the holders requesting
that their Registrable Securities or Parity Shares be registered in such
registration may otherwise agree; and




     (c) the balance, if any, not allocated pursuant to clause (b) above shall be
allocated to shares, other than Registrable Securities and Parity Shares, requested
to be included in such registration by other stockholders.



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For purposes of any underwriter cutback, all Registrable Securities held by any Holder shall also
include any Registrable Securities held by the partners, retired partners, Stockholders, Affiliates
or Permitted Transferees of such Holder, or the estates and family members of any such Holder or
such partners and retired partners, any trusts for the benefit of any of the foregoing Persons and,
at the election of such Holder or such partners, retired partners, trusts or Affiliates, and any
Charitable Organization to which any of the foregoing shall have contributed Common Stock prior to
the execution of the underwriting agreement in connection with such underwritten offering, and such
Holder and other Persons shall be deemed to be a single selling Holder, and any pro rata reduction
with respect to such selling Holder shall be based upon the aggregate amount of Common Stock owned
by all entities and individuals included in such selling Holder, as defined in this sentence. No
securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall
be included in such registration. Upon delivery of a written request that Registrable Securities
be included in the underwriting pursuant to Section 3.1.1 or 3.2.1(a) the Holder thereof may not
thereafter elect to withdraw such request without the written consent of the Principal
Participating Holders; provided that, if the managing underwriter of any underwritten
offering shall advise the Holders participating in a registration pursuant to Section 3.1 that the
Registrable Securities covered by the Registration Statement cannot be sold in such offering within
a price range acceptable to the Principal Participating Holders, then the Principal Participating
Holders shall have the right to notify the Company that they have determined that the Registration
Statement be abandoned or withdrawn, in which event the Company shall abandon or withdraw such
Registration Statement; provided, further, that if the price to the public at which
the Registrable Securities are proposed to be sold will be less than 90% of the average closing
price of the Common Stock to be registered during the 10 trading days preceding the date on which
notice of such offering was given pursuant to Section 3.2.1(a), then the Holders participating in
such registration pursuant to Section 3.1 or 3.2 may elect to withdraw from such registration by
written notice to the Company. The Company may, but shall not be required to, extend similar
withdrawal rights to other Holders of Parity Shares.





     3.3.2. Registration Procedures. If, and in each case when, the Company is
required to effect a registration of any Registrable Securities as provided in this
Section 3, the Company shall promptly:




     (a) prepare and, in any event within forty-five days (thirty days in the case
of a Form S-3 registration) after the end of the period under Section 3.2.1(a)
within which a piggyback request for registration may be given to the Company, file
with the Commission a Registration Statement with respect to such Registrable
Securities and use, in the event the Company is not a WKSI, its commercially
reasonable efforts to cause such Registration Statement to become effective within
ninety days of the initial filing;




     (b) prepare and file with the Commission such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as may
be necessary to keep such Registration Statement effective (i) in the case of a
shelf Registration Statement, until the earlier of (A) the date on which all
remaining Registrable Securities may be sold under Rule 144(k) under the Securities
Act or (B) two years after the effective date of such Registration Statement, or
(ii) in all other cases for a period not in excess of 270 days (in each



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case, or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold) and to comply with
the provisions of the Securities Act and the Exchange Act with respect to the
disposition of all securities covered by such Registration Statement during such
period in accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such Registration Statement; provided that
before filing a Registration Statement or prospectus, or any amendments or
supplements thereto in accordance with Sections 3.1 or 3.2, the Company will
furnish to counsel selected pursuant to Section 3.3.3 hereof copies of all documents
proposed to be filed, which documents will be subject to the review of such counsel;




     (c) furnish to each seller of such Registrable Securities such number of copies
of such Registration Statement and of each amendment and supplement thereto (in each
case including all exhibits filed therewith), such number of copies of the
prospectus included in such Registration Statement (including each preliminary
prospectus and summary prospectus), in conformity with the requirements of the
Securities Act, and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities by such seller;




     (d) use its best efforts to register or qualify such Registrable Securities
covered by such registration in such jurisdictions as each seller of Registrable
Securities shall reasonably request, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition of Registrable Securities in such jurisdictions, except that the Company
shall not for any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction where (but for the requirements of this
clause (d)) it would not be obligated to be so qualified, or to consent to general
service of process in any such jurisdiction;




     (e) notify each seller of any such Registrable Securities covered by such
Registration Statement, at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, of the Company’s becoming aware that the
prospectus included in such Registration Statement, as then in effect, includes an
untrue statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in light
of the circumstances then existing, and at the request of any such seller, prepare
and furnish to such seller a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in light
of the circumstances then existing;




     (f) otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as



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soon as reasonably practicable (but not more than 18 months) after the
effective date of the Registration Statement, an earning statement which shall
satisfy the provisions of Section 11(a) of the Securities Act;




     (g) (i) if such Registrable Securities are Common Stock (including Common Stock
issuable upon conversion, exchange or exercise of another security), use its best
efforts to list such Registrable Securities on any securities exchange or authorize
for quotation on each other market (including, if applicable, the National
Association of Securities Dealers, Inc. Automated Quotation System (“NASDAQ”)) on
which the Common Stock is then listed or authorized for quotation if such
Registrable Securities are not already so listed or authorized for quotation; and
(ii) use its best efforts to provide a transfer agent and registrar for such
Registrable Securities covered by such Registration Statement not later than the
effective date of such Registration Statement;




     (h) enter into such customary agreements (including an underwriting agreement
in customary form), which shall include indemnification provisions in favor of
underwriters and other Persons (in addition to the provisions of Section 3.4 hereof)
covering the entirety of the Registration Statement, excluding any information
supplied to the underwriters by the Holders selling Registrable Securities in such
offering, and take such other actions as the Principal Participating Holders or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;




     (i) obtain a “comfort” letter or letters from the Company’s independent public
accountants in customary form and covering matters of the type customarily covered
by “comfort” letters, as the Principal Participating Holders shall reasonably
request;




     (j) make available for inspection by any seller of such Registrable Securities
covered by such Registration Statement, by any managing underwriter or underwriters
participating in any disposition to be effected pursuant to such Registration
Statement and by any attorney, accountant or other agent retained by any such seller
or any such managing underwriter(s), all pertinent financial and other records,
pertinent corporate documents and properties of the Company, and cause all of the
Company’s officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such Registration Statement (subject to each party referred to in
this clause (j) entering into customary confidentiality agreements in a form
reasonably acceptable to the Company);




     (k) notify counsel (selected pursuant to Section 3.3.3 hereof) for the Holders
of Registrable Securities included in such Registration Statement and the managing
underwriter or agent, immediately, and confirm the notice in writing (i) when the
Registration Statement, or any post-effective amendment to the Registration
Statement, shall have become effective, or any supplement to the prospectus or any
amendment to the prospectus shall have been filed, (ii) of the



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receipt of any comments from the Commission, (iii) of any request of the
Commission to amend the Registration Statement or amend or supplement the prospectus
or for additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Registration Statement for offering or sale
in any jurisdiction, or of the institution or threatening of any proceedings for any
of such purposes;




     (l) use its best efforts to prevent the issuance of any stop order suspending
the effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus and, if any such order is issued,
to obtain the withdrawal of any such order as soon as practicable;




     (m) if requested by the managing underwriter or agent or any Holder of
Registrable Securities covered by the Registration Statement, incorporate in a
prospectus supplement or post-effective amendment such information as the managing
underwriter or agent or such Holder reasonably requests to be included therein,
including the number of Registrable Securities being sold by such Holder to such
underwriter or agent, the purchase price being paid therefor by such underwriter or
agent, and any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
prospectus supplement or post-effective amendment as soon as practicable after being
notified of the matters incorporated in such prospectus supplement or post-effective
amendment;




     (n) cooperate with the Holders of Registrable Securities covered by the
Registration Statement and the managing underwriter or agent, if any, to facilitate
the timely preparation and delivery of certificates (not bearing any restrictive
legends) representing securities to be sold under the Registration Statement, and
enable such securities to be in such denominations and registered in such names as
the managing underwriter or agent, if any, or such Holders may request;




     (o) obtain for delivery to the Holders of Registrable Securities being
registered and to the underwriter or agent an opinion or opinions from counsel for
the Company in customary form and in form, substance and scope reasonably
satisfactory to such Holders, underwriters or agents and their counsel;




     (p) cooperate with each seller of Registrable Securities and each underwriter
or agent participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the NASD;
and




     (q) use its best efforts to make available the executive officers of the
Company to participate with the Holders of Registrable Securities and any
underwriters in any “road show” presentations or investor telephone conference



- 14 -









 







calls that may be reasonably requested by the Holders in connection with
distribution of the Registrable Securities.




     3.3.3. Selection of Underwriters and Counsel. The underwriters and legal
counsel to be retained by the Company in connection with any Public Offering shall be
selected by the Board; provided that, in the case of an offering following a
request therefor under Section 3.1.1, such underwriters and counsel shall be reasonably
acceptable to the Principal Participating Holders and Demand Party. In connection with
any registration of Registrable Securities pursuant to Sections 3.1 and 3.2 hereof, the
Principal Participating Holders and the Demand Party may jointly select one counsel to
represent all Holders of Registrable Securities covered by such registration;
provided, however, that in the event that the counsel selected as provided
above is also acting as counsel to the Company in connection with such registration, the
remaining Holders shall be entitled to select one additional counsel to represent, at the
Company’s expense, all such remaining Holders.




     3.3.4. Company Lock-Up. If any registration pursuant to Section 3.1 of this
Agreement shall be in connection with an underwritten public offering, the Company agrees
not to effect any public sale or distribution of any Common Stock of the Company (or
securities convertible into or exchangeable or exercisable for Common Stock) (in each
case, other than as part of such underwritten public offering and other than pursuant to a
registration on Form S-4 or S-8) for its own account, within such period as the managing
underwriters may require after the effective date of such registration (except as part of
such registration).




     3.3.5. Holders and Other Holders Lock-Up. Each Holder and each Other Holder
shall comply with the provisions of Section 6 of the Stockholders Agreement applicable to
a “Stockholder” as though such Section were set forth herein.




     3.3.6. Other Agreements. The Company covenants and agrees that, so long as
any Person holds any Registrable Securities in respect of which any registration rights
provided for in Section 3.1 of this Agreement remain in effect, the Company will not,
directly or indirectly, grant to any Person or agree to or otherwise become obligated in
respect of (i) rights of registration in the nature or substantially in the nature of
those set forth in Section 3.1 or 3.2 of this Agreement that would have priority over the
Registrable Securities with respect to the inclusion of such securities in any
registration or (ii) demand registration rights exercisable prior to such time as the
Founders can first exercise their rights under Section 3.1.



3.4. Indemnification and Contribution.





     3.4.1. Indemnities of the Company. In the event of any registration of any
Registrable Securities or other debt or equity securities of the Company or any of its
subsidiaries under the Securities Act pursuant to this Section 3 or otherwise, and in
connection with any Registration Statement or any other disclosure document produced by or
on behalf of the Company or any of its subsidiaries including reports required and other
documents filed under the Exchange Act, and other documents pursuant to which



- 15 -









 







any debt or equity securities of the Company or any of its subsidiaries are sold
(whether or not for the account of the Company or its subsidiaries), the Company will, and
hereby does, and will cause each of its subsidiaries, jointly and severally, to indemnify
and hold harmless each Holder of Registrable Securities, any Person who is or might be
deemed to be a controlling Person of the Company or any of its subsidiaries within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, their
respective direct and indirect partners, advisory board members, directors, officers,
trustees, members and Stockholders, and each other Person, if any, who controls any such
holder or any such controlling Person within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such Person being referred to herein as a
“Covered Person”), against any losses, claims, damages or liabilities (or actions
or proceedings in respect thereof), joint or several, to which such Covered Person may be
or become subject under the Securities Act, the Exchange Act, any other securities or
other law of any jurisdiction, the common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement of any material
fact contained or incorporated by reference in any Registration Statement under the
Securities Act, any preliminary prospectus or final prospectus included therein, or any
related summary prospectus, or any amendment or supplement thereto, or any document
incorporated by reference therein, or any other such disclosure document (including
reports and other documents filed under the Exchange Act and any document incorporated by
reference therein) or other document or report, (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or (iii) any violation or alleged violation by the
Company or any of its subsidiaries of any federal, state, foreign or common law rule or
regulation applicable to the Company or any of its subsidiaries and relating to action or
inaction in connection with any such registration, disclosure document or other document
or report, and will reimburse such Covered Person for any legal or any other expenses
incurred by it in connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that neither the
Company nor any of its subsidiaries shall be liable to any Covered Person in any such case
to the extent that any such loss, claim, damage, liability, action or proceeding arises
out of or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement, incorporated document or
other such disclosure document or other document or report, in reliance upon and in
conformity with written information furnished to the Company or to any of its subsidiaries
through an instrument duly executed by such Covered Person specifically stating that it is
for use in the preparation thereof. The indemnities of the Company and of its
subsidiaries contained in or included in any underwriting agreement entered into pursuant
to this Section 3.4.1 shall remain in full force and effect regardless of any
investigation made by or on behalf of such Covered Person and shall survive any transfer
of securities or any termination of this Agreement.




     3.4.2. Indemnities to the Company. Subject to Section 3.4.4, the Company and
any of its subsidiaries may require, as a condition to including any securities in any



- 16 -









 







Registration Statement filed pursuant to this Section 3, that the Company and any of
its subsidiaries shall have received an undertaking reasonably satisfactory to it from all
prospective sellers of such securities, severally and not jointly, to indemnify and hold
harmless the Company and any of its subsidiaries, each director of the Company or any of
its subsidiaries, each officer of the Company or any of its subsidiaries who shall sign
such Registration Statement and each other Person (other than such seller), if any, who
controls the Company and any of its subsidiaries within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each other prospective seller of such
securities against any losses, claims, damages or liabilities (or actions or proceedings
in respect thereof), joint or several, to which such Person may be or become subject under
the Securities Act, the Exchange Act, any other securities or other law of any
jurisdiction, the common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are based upon
any statement in or omission from such Registration Statement, any preliminary prospectus,
final prospectus or summary prospectus included therein, or any amendment or supplement
thereto, or any other disclosure document (including reports and other documents filed
under the Exchange Act or any document incorporated therein) or other document or report,
only to the extent that such statement or omission was made in reliance upon and in
conformity with written information furnished to the Company or any of its subsidiaries
through an instrument executed by such seller specifically stating that it is for use in
the preparation of such Registration Statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement, incorporated document or other document or
report. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company, any of its subsidiaries or any such
director, officer or controlling Person and shall survive any transfer of securities or
any termination of this Agreement.




     3.4.3. Contribution. If the indemnification provided for in Sections 3.4.1
or 3.4.2 hereof is unavailable to a party that would have been entitled to indemnification
pursuant to the foregoing provisions of this Section 3.4 (an “Indemnitee”) in
respect of any losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to therein, then each party that would have been an indemnifying
party thereunder shall, subject to Section 3.4.4 and in lieu of indemnifying such
Indemnitee, contribute to the amount paid or payable by such Indemnitee as a result of
such losses, claims, damages or liabilities (or actions or proceedings in respect thereof)
in such proportion as is appropriate to reflect the relative fault of such indemnifying
party on the one hand and such Indemnitee on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof). The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information supplied
by such indemnifying party or such Indemnitee and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just or equitable if contribution pursuant to this
Section 3.4.3 were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations



- 17 -









 







referred to in the preceding sentence. The amount paid or payable by a contributing
party as a result of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to above in this Section 3.4.3 shall include any legal or
other expenses reasonably incurred by such Indemnitee in connection with investigating or
defending any such action or claim. 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.




     3.4.4. Limitation on Liability of Holders of Registrable Securities. The
liability of each Holder of Registrable Securities in respect of any indemnification or
contribution obligation of such holder arising under this Section 3.4 shall not in any
event exceed an amount equal to the net proceeds to such Holder (after deduction of all
underwriters’ discounts and commissions) from the disposition of the Registrable
Securities disposed of by such holder pursuant to such registration.




     3.4.5. Indemnification Procedures. Promptly after receipt by an Indemnitee
of written notice of the commencement of any action or proceeding with respect to which a
claim for indemnification may be made pursuant to this Section 3.4, such Indemnitee will,
if a claim in respect thereof is to be made against an indemnifying party, give written
notice to the latter of the commencement of such action or proceeding; provided
that the failure of the Indemnitee to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Section 3.4, except to the extent that
the indemnifying party is materially prejudiced by such failure to give notice. In case
any such action or proceeding is brought against an Indemnitee, the indemnifying party
will be entitled to participate in and to assume the defense thereof (at its expense),
jointly with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such Indemnitee, and after notice from the
indemnifying party to such Indemnitee of its election so to assume the defense thereof,
the indemnifying party will not be liable to such Indemnitee for any legal or other
expenses subsequently incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation and shall have no liability for any settlement made
by the Indemnitee without the consent of the indemnifying party, such consent not to be
unreasonably withheld. Notwithstanding the foregoing, if in such Indemnitee’s reasonable
judgment a conflict of interest between such Indemnitee and the indemnifying parties may
exist in respect of such action or proceeding or the indemnifying party does not assume
the defense of any such action or proceeding within a reasonable time after notice of
commencement, the Indemnitee shall have the right to assume or continue its own defense
and the indemnifying party shall be liable for any reasonable expenses therefor, but in no
event will bear the expenses for more than one counsel for all Indemnitees in each
jurisdiction who shall be approved by the Principal Participating Holders in the
registration in respect of which such indemnification is sought. No indemnifying party
will settle any action or proceeding or consent to the entry of any judgment without the
prior written consent of the Indemnitee, unless such settlement or judgment (i) includes
as an unconditional term thereof the giving by the claimant or plaintiff of a release to
such Indemnitee from all liability in respect of such action or proceeding and (ii) does
not involve the imposition of equitable remedies or the imposition of any obligations on
such Indemnitee and does



- 18 -









 







not otherwise adversely affect such Indemnitee, other than as a result of the
imposition of financial obligations for which such Indemnitee will be indemnified
hereunder.



3.5. Permitted Registration Rights Assignees. 





     3.5.1. Registration Rights. The rights of a holder of Registrable Securities
to cause the Company to register its Registrable Securities pursuant to Section 3.1 or 3.2
may be assigned (but only with all related obligations as set forth below) in a Transfer
effected in accordance with the terms of the Stockholders Agreement and this Agreement to:
(a) a Charitable Organization, (b) a Permitted Transferee or (c) any other transferee
that, together with its Affiliates, in the case of this clause (c) acquires shares of
Registrable Securities either (i) for consideration of at least $20,000,000 or (ii) having
a then fair market value (determined in good faith by the Board) of at least $20,000,000
(the transferees described in clauses (a), (b) and (c) each a “Permitted Registration
Rights Assignee”). Without prejudice to any other or similar conditions imposed
hereunder with respect to any such Transfer, no assignment permitted under the terms of
this Section 3.5.1 shall be effective unless the Permitted Registration Rights Assignee,
if not a Stockholder, has delivered to the Company a written acknowledgment and agreement
in form and substance reasonably satisfactory to the Company that such Registrable
Securities in respect of which such assignment is made shall be deemed Other Holder Shares
and shall be subject to all of the provisions of this Agreement relating to Other Holder
Shares and that such Permitted Registration Rights Assignee shall be bound by, and shall
be an Other Holder party to, this Agreement and the holder of Other Holder Shares
hereunder. A transferee to whom rights are transferred pursuant to this Section 3.5.1 may
not again transfer such rights to any Person, other than as provided in this Section
3.5.1.



4. REMEDIES.




     4.1. Generally. The parties shall have all remedies available at law, in equity or
otherwise in the event of any breach or violation of this Agreement or any default hereunder. The
parties acknowledge and agree that in the event of any breach of this Agreement, in addition to any
other remedies which may be available, each of the parties hereto shall be entitled to specific
performance of the obligations of the other parties hereto and, in addition, to such other
equitable remedies (including preliminary or temporary relief) as may be appropriate in the
circumstances.



5. PERMITTED TRANSFEREES.




     5.1. Transfers by Investors. The rights of an Investor hereunder may be assigned
(but only with all related obligations as set forth below) in connection with a Transfer of Shares
effected in accordance with the terms of the Stockholders Agreement and this Agreement to a
Permitted Transferee of such Investor. Without prejudice to any other or similar conditions
imposed hereunder with respect to any such Transfer, no assignment permitted under the terms of
this Section 5.1 shall be effective unless the Permitted Transferee to which such assignment is
being made, if not a Stockholder, has delivered to the Company a written acknowledgment and
agreement in form and substance reasonably satisfactory to the Company that the Shares in



- 19 -









 







respect of which such assignment is made shall continue to be deemed Shares and shall be
subject to all of the provisions of this Agreement relating to Shares and that such Permitted
Transferee shall be bound by, and shall be a party to, this Agreement as an Investor. A Permitted
Transferee to whom rights are transferred pursuant to this Section 5.1 may not again transfer such
rights to any other Permitted Transferee, other than as provided in this Section 5.1.



     5.2. Transfers by Founders. The rights of a Founder hereunder may be assigned (but
only with all related obligations as set forth below) in connection with a Transfer of Shares
effected in accordance with the terms of the Stockholders Agreement and this Agreement to a
Permitted Transferee of such Founder; provided that upon the death of a Founder, the rights
of the deceased Founder pursuant to Section 3.1.1 hereof may only be transferred to a natural
Person or a Permitted Transferee under Section 3.2.2 of the Stockholder Agreement. Without
prejudice to any other or similar conditions imposed hereunder with respect to any such Transfer,
no assignment permitted under the terms of this Section 5.2 shall be effective unless the Permitted
Transferee to which such assignment is being made, if not a Stockholder, has delivered to the
Company a written acknowledgement and agreement in form and substance reasonably satisfactory to
the Company that the Shares in respect of which such assignment is made shall continue to be deemed
Shares and shall be subject to all of the provisions of this Agreement relating to Shares and that
such Permitted Transferee shall be bound by, and shall be a party to, this Agreement as a Founder.
A Permitted Transferee to whom rights are transferred pursuant to this Section 5.2 may not again
transfer such rights to any other Permitted Transferee, other than as provided in this Section 5.2.



     5.3. Transfers by Managers. The rights of a Manager hereunder may be assigned (but
only with all related obligations as set forth below) in connection with a Transfer of Shares
effected in accordance with the terms of the Stockholders Agreement and this Agreement to a
Permitted Transferee of such Manager. Without prejudice to any other or similar conditions imposed
hereunder with respect to any such Transfer, no assignment permitted under the terms of this
Section 5.3 shall be effective unless the Permitted Transferee to which such assignment is being
made, if not a Stockholder, has delivered to the Company a written acknowledgment and agreement in
form and substance reasonably satisfactory to the Company that the Management Shares in respect of
which such assignment is made shall continue to be deemed Management Shares and shall be subject to
all of the provisions of this Agreement relating to Management Shares and that such Permitted
Transferee shall be bound by, and shall be a party to, this Agreement as a Manager. A Permitted
Transferee to whom rights are transferred pursuant to this Section 5.3 may not again transfer such
rights to any other Permitted Transferee, other than as provided in this Section 5.3.



6. AMENDMENT, TERMINATION, ETC.




     6.1. Oral Modifications. This Agreement may not be orally amended, modified, extended
or terminated, nor shall any oral waiver of any of its terms be effective.



     6.2. Written Modifications. This Agreement may be amended, modified, extended or
terminated, and the provisions hereof may be waived, only by an agreement in writing signed by the
Company and the Majority Stockholders; provided, however, (a) the consent of the Majority
Founders shall be required for any amendment, modification, extension, termination or waiver



- 20 -









 




(an “Amendment”) that discriminates against rights of the Founders specifically or
against the holders of Founder Shares as such under this Agreement, (b) the consent of the Majority
Managers shall be required for any Amendment that discriminates against the rights of the Managers
specifically or against the holders of Management Shares as such under this Agreement, (c) the
consent of the Majority Quadrangle Investors shall be required for any Amendment that discriminates
against the rights of the Quadrangle Investors specifically or against the holders of Quadrangle
Investor Shares as such under this Agreement and (d) the consent of the Majority Other Investors
shall be required for any Amendment that discriminates against the rights of the Other Investors
specifically or against the holders of Other Investor Shares as such under this Agreement. In
addition, any Amendment that amends provisions relating to restrictions on Transfer of Shares that
is adverse in any material respect to any Investor or Founder or that amends provisions affecting
rights to demand or participate in registered offerings of shares or in other offerings of shares
by the Company in a manner that is adverse in any material respect to any Investor or Founder will
require the approval of each such Investor or Founder; provided that, subject to Section
3.3.6 hereof, the addition of any new Investor hereunder shall not be deemed to be an adverse
Amendment.



Each such Amendment shall be binding upon each party hereto and each holder of Shares or Other
Holder Shares subject hereto. In addition, each party hereto and each holder of Shares or Other
Holder Shares subject hereto may waive any right hereunder by an instrument in writing signed by
such party or holder. To the extent the Amendment of any Section of this Agreement would require a
specific consent pursuant this Section 6.2, any Amendment to the definitions used in such Section
shall also require the specified consent.




     6.3. Effect of Termination. No termination under this Agreement shall relieve any
Person of liability for breach prior to termination. In the event this Agreement is terminated,
each Investor shall retain the indemnification rights pursuant to Section 3.4 hereof with respect
to any matter that (i) may be an indemnified liability thereunder and (ii) occurred prior to such
termination.



7. DEFINITIONS.




     For purposes of this Agreement:



     7.1. Certain Matters of Construction. In addition to the definitions referred to or
set forth below in this Section 7.1:



     (i) The words “hereof,’ “herein,” “hereunder” and words of similar import shall refer to this
Agreement as a whole and not to any particular Section or provision of this Agreement, and
reference to a particular Section of this Agreement shall include all subsections thereof;



(ii) The word “including” shall mean including, without limitation;




     (iii) Definitions shall be equally applicable to both nouns and verbs and the singular and
plural forms of the terms defined; and



     (iv) The masculine, feminine and neuter genders shall each include the other.



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     7.2. Definitions. The following terms shall have the following meanings:



     “144 Coordination” shall have the meaning set forth in Section 2.1.1.



     “Affiliate” means, with respect to any specified Person, (a) any other Person which
directly or indirectly through one or more intermediaries controls, or is controlled by, or is
under common control with, such specified Person (for the purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling,” “controlled by” and “under common
control with”), as used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise), and (b) if the specified
person is a natural Person, any Family Member of such natural Person.



     “Affiliated Fund” means with respect to any Investors, each corporation, trust,
limited liability company, general or limited partnership or other entity under common control with
that Investor (including any such entity with the same general partner or principal investment
advisor as that Investor or with a general partner or principal investment advisor that is an
Affiliate of the general partner or principal investment advisor of that Investor).



     “Agreement” shall have the meaning set forth in the Preamble.



     “Amendment” shall have the meaning set forth in Section 6.2.



     “Board” shall mean the board of directors of the Company.



     “Business Day” shall mean any day that is not a Saturday, a Sunday or other day on
which banks are required or authorized by law to be closed in the City of New York.



     “Charitable Organization” shall mean a charitable organization as described by Section
501(c)(3) of the Internal Revenue Code of 1986, as in effect from time to time.



     “Class A Stock” shall mean the Class A Common Stock, par value $.001 per share, of the
Company.



     “Class L Stock” shall mean the Class L Common Stock, par value $.001 per share, of the
Company.



     “Closing” shall have the meaning set forth in Section 1.1.



     “Commission” shall mean the Securities and Exchange Commission.



     “Common Stock” shall mean the common stock of the Company, including the Class A Stock
and the Class L Stock.



     “Company” shall have the meaning set forth in the Preamble.



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     “Convertible Securities” shall mean any evidence of indebtedness, shares of stock
(other than Stock) or other securities (other than Options and Warrants) which are directly or
indirectly convertible into or exchangeable or exercisable for shares of Stock.



     “Covered Person” shall have the meaning set forth in Section 3.4.1.



     “Demand Party” shall have the meaning set forth in Section 3.1.6.



     “Distribution” shall have the meaning set forth in Section 2.3.



     “Exchange Act” shall mean the Securities Exchange Act of 1934, as in effect from time
to time.



     “Family Member” shall mean, with respect to any natural Person, (i) any lineal
descendant or ancestor or sibling (by birth or adoption) of such natural Person, (ii) any spouse or
former spouse of any of the foregoing, (iii) any legal representative or estate of any of the
foregoing, (iv) any trust maintained for the benefit of any of the foregoing and (v) any
corporation, private charitable foundation or other organization controlled by any of the
foregoing.



     “Founders” shall have the meaning set forth in the Preamble.



     “Holders” shall mean the holders of Registrable Securities under this Agreement.



     “Indemnitee” shall have the meaning set forth in Section 3.4.3.



     “Initial Investor Shares” means the Investor Shares issued to the Investors on or
before the Closing Date, as indicated on Schedule I hereto; provided, however that
any Investor Shares Transferred to a Person who is not a Permitted Transferee and who is thereafter
designated as an “Investor” or “Other Investor” shall not count toward the number of “Initial
Investor Shares” still owned by the Investors for purposes of calculating the 25% continuing
ownership threshold of the Investors hereunder, but shall continue to be deemed “Initial Investor
Shares” for purposes of determining the number of Shares issued to the Investors on or before the
Closing Date



     “Initial Post-IPO Demand Rights” shall have the meaning set forth in Section 3.1.1.



     “Initial Public Offering” shall mean the initial Public Offering registered on Form
S-1 (or any successor form under the Securities Act).



     “Initiating Block Transferor” shall have the meaning set forth in Section 2.1.2.



     “Initiating Stockholders” shall have the meaning set forth in Section 3.1.1.



     “Investor Shares” means all shares of Common Stock originally issued to, or issued
with respect to shares originally issued to, or held by, a THL Investor, a Quadrangle Investor or
an Other Investor, whenever issued.



     “Investors” shall have the meaning set forth in the Preamble.



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     “Majority Founders” means, as of any date, the holders of a majority of the Founder
Shares outstanding on such date.



     “Majority Initial Investors” means, as of any date, the holders of a majority of the
Investor Shares outstanding on such date that are then held by the THL Investors and the Quadrangle
Investors.



     “Majority Investors” means, as of any date, the holders of a majority of the Investor
Shares outstanding on such date.



     “Majority Managers” means, as of any date, the holders of a majority of the Management
Shares outstanding on such date.



     “Majority Stockholders” means, as of any date, the holders of a majority of the Shares
outstanding on such date.



     “Management Shares” shall mean all shares of Common Stock originally issued to, or
issued with respect to shares originally issued to, or held by a Manager. Any Management Shares
that are Transferred by the holder thereof to such holder’s Permitted Transferees shall remain
Management Shares in the hands of such Permitted Transferee.



     “Managers” shall have the meaning set forth in the Preamble.



     “NASDAQ” shall have the meaning set forth in Section 3.3.2(g).



     “Newco” shall have the meaning set forth in the Recitals.



     “Options” shall mean any options to subscribe for, purchase or otherwise directly
acquire Stock, other than any such option held by the Company or any right to purchase shares
pursuant to this Agreement.



     “Other Holder Shares” shall mean (a) all shares of Stock held by an Other Holder that
were Transferred to such Other Holder in a transaction subject to Section 3.5.1 or that were
acquired by such Other Holder upon the exercise, conversion or exchange of any Options, Warrants or
Convertible Securities that were Transferred to such Other Holder in a transaction subject to
Section 3.5.1 and (b) all Options, Warrants and Convertible Securities that were Transferred to
such Other Holder in a transaction subject to Section 3.5.1, treating such Options, Warrants and
Convertible Securities as a number of Other Holder Shares equal to the maximum number of shares of
Common Stock for which or into which such Options, Warrants or Convertible Securities may at the
time be exercised, converted or exchanged (or which will become exercisable, convertible or
exchangeable on or prior to, or by reason of, the transaction or circumstance in connection with
which the number of Other Holder Shares is to be determined).



     “Other Holders” shall have the meaning set forth in the Preamble.



     “Other Investors” shall have the meaning set forth in the Preamble.



- 24 -









 





     “Other Investor Shares” means Investor Shares issued to, or held by, an Other
Investor.



     “Outstanding Shares” means all outstanding shares of Common Stock.



     “Parity Shares” shall have the meaning set forth in Section 3.3.1.



     “Permitted Registration Rights Assignee” shall have the meaning set forth in Section
3.5.1.



     “Permitted Transferee” shall have the meaning set forth in the Stockholders Agreement.



     “Person” shall mean any individual, partnership, corporation, company, association,
trust, joint venture, limited liability company, unincorporated organization, entity or division,
or any government, governmental department or agency or political subdivision thereof.



     “Potential Block Participant” shall have the meaning set forth in Section 2.1.2.



     “Principal Lock-Up Agreement” shall have the meaning set forth in Section 6 of the
Stockholders Agreement.



     “Principal Participating Holders” shall mean, with respect to any Public Offering, (i)
the Holder including the greatest number of Registrable Securities in such Public Offering or (ii)
if there is more than one such Holder including the greatest number of Registrable Securities in
such Public Offering (i.e., if more than one Holder is including the same amount and no other
Holders are including a greater amount), a majority of such Holders.



     “Pro Rata Portion” shall mean with respect to each holder of Registrable Securities or
Parity Shares requesting that such shares be registered in such Registration Statement, a number of
such shares equal to the aggregate number of shares of Common Stock to be registered in such
registration (excluding any shares to be registered for the account of the Company) multiplied by a
fraction, the numerator of which is the aggregate number of Registrable Securities and Parity
Shares held by such holder, and the denominator of which is the aggregate number of Registrable
Securities and Parity Shares held by all holders requesting that their Registrable Securities or
Parity Shares be registered in such registration.



     “Public Offering” shall mean a public offering and sale of Common Stock for cash
pursuant to an effective Registration Statement under the Securities Act.



     “Quadrangle Investor” has the meaning set forth in the Preamble.



     “Recapitalization Agreement” shall have the meaning set forth in the Recitals.



     “Registrable Securities” shall mean (a) all shares of Class A Stock that are not then
subject to vesting (including shares that were at one time subject to vesting to the extent they
have vested), (b) all shares of Class A Stock issuable upon exercise, conversion or exchange of any
vested Option, Warrant or Convertible Security and (c) all shares of Class A Stock directly or
indirectly issued or issuable with respect to the securities referred to in clauses (a) or (b)
above by way of stock dividend or stock split or in connection with a combination of shares,



- 25 -









 







recapitalization, merger, consolidation or other reorganization, in each case constituting
Shares. As to any particular Registrable Securities, such shares shall cease to be Registrable
Securities when (i) such securities shall have ceased to be subject to the Stockholders Agreement,
(ii) a Registration Statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed of in accordance
with such Registration Statement, (iii) such securities shall have been Transferred pursuant to
Rule 144 or Rule 145, (iv) such securities shall have been otherwise transferred to a Person that
is not an Affiliate of the transferor, new certificates for them not bearing a legend restricting
further transfer shall have been delivered by the Company as part of such transfer, subsequent
disposition of them shall not require registration of them under the Securities Act and such
securities may be distributed without volume limitation or other restrictions on transfer under
Rule 144 or Rule 145 (including without application of paragraphs (c), (e) (f) and (h) of Rule
144), (v) such securities shall have ceased to be outstanding or (vi) such securities are
Transferable pursuant to Rule 144 or Rule 145, and the holder of such securities, together with all
of its Affiliates, holds no more than one percent (1%) of the Shares.



     “Registration Expenses” means any and all expenses incident to performance of or
compliance with Section 3 of this Agreement (other than underwriting discounts and commissions paid
to underwriters and transfer taxes, if any, in each case with respect to shares sold by
Stockholders), including (a) all Commission and securities exchange or NASD registration and filing
fees, (b) all fees and expenses of complying with securities or blue sky laws (including reasonable
fees and disbursements of counsel for the underwriters in connection with blue sky qualifications
of the Registrable Securities), (c) all printing, messenger and delivery expenses, (d) all fees and
expenses incurred in connection with the listing of the Registrable Securities on any securities
exchange or NASDAQ pursuant to Section 3.3.2(g) and all rating agency fees, (e) the fees and
disbursements of counsel for the Company and of its independent public accountants, including the
expenses of any special audits and/or “comfort” letters required by or incident to such performance
and compliance, (f) the reasonable fees and disbursements of counsel for the Holders selected
pursuant to the terms of Section 3 and counsel for certain Holders selected pursuant to the second
proviso of Section 3.3.3, if applicable, (g) any other fees and disbursements customarily paid by
the issuers of securities, and (h) expenses incurred in connection with any road show (including
the reasonable out-of-pocket expenses of the Holders).



     “Registration Statement” means a registration statement filed pursuant to the
Securities Act, including the registration statement filed pursuant to the Initial Public Offering,
or any Public Offering, and any supplements or amendments thereto.



     “Related Stockholder” shall have the meaning set forth in Section 2.1.1(c).



     “Rule 144” shall mean Rule 144 under the Securities Act (or any successor Rule).



     “Rule 145” shall mean Rule 145 under the Securities Act (or any successor Rule).



     “Rule 145 Transaction” shall mean a registration on Form S-4 (or any successor form)
pursuant to Rule 145.



- 26 -









 





     “Sale” shall mean a Transfer for value and the terms “Sell” and “Sold” shall have
correlative meanings.



     “Securities Act” shall mean the Securities Act of 1933, as in effect from time to
time.



     “Shares” means shares all Investor Shares, Other Investor Shares, Founder Shares, and
Management Shares.



     “Specified Holder” shall have the meaning set forth in Section 2.1.1(c).



     “Stockholder Group” shall mean any one of (a) the THL Investors, collectively, (b) the
Quadrangle Investors, collectively, (c) the Founders, collectively, (d) the Other Investors,
collectively, or (e) Managers, collectively.



     “Stockholders” means any holder of Shares.



     “Stockholders Agreement” shall have the meaning set forth in the Recitals.



     “THL Investors” shall have the meaning set forth in the Preamble.



     “Transfer” means any sale, pledge, assignment, encumbrance or other transfer or
disposition of any Shares to any other Person, whether directly, indirectly, voluntarily,
involuntarily, by operation of law, pursuant to judicial process or otherwise.



     “Warrants” shall mean any warrants to subscribe for, purchase or otherwise directly
acquire Common Stock.



     “WKSI” shall have the meaning set forth in Section 3.2.4.



8. MISCELLANEOUS.




     8.1. Authority; Effect. Each party hereto represents and warrants to and agrees with
each other party that the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized on behalf of such party and do not
violate any agreement or other instrument applicable to such party or by which its assets are
bound. This Agreement does not, and shall not be construed to, give rise to the creation of a
partnership among any of the parties hereto, or to constitute any of such parties members of a
joint venture or other association. The Company and its subsidiaries shall be jointly and
severally liable for all obligations of each such party pursuant to this Agreement.



     8.2. Notices. All notices, requests, demands, claims and other communications
required or permitted to be delivered, given or otherwise provided under this Agreement must be in
writing and must be delivered, given or otherwise provided:




          (a) by hand (in which case, it will be effective upon delivery);




          (b) by facsimile (in which case, it will be effective upon receipt of confirmation of
good transmission);



- 27 -









 






          (c) by overnight delivery by a nationally recognized courier service (in which case, it
will be effective on the second Business Day after being deposited with such courier
service); or




          (d) by U.S. Postal Service (in which case it will be effective four Business Days after
being deposited with the U.S. Postal Service);



in each case, to the address (or facsimile number) listed below; provided that
each of the parties hereto shall be entitled to specify a different address by giving notice
as aforesaid to each of the other parties hereto.



If to the Company to:



West Corporation

11808 Miracle Hills Drive

Omaha, Nebraska 68154

Facsimile: (402) 963-1211

Attention: General Counsel



     with copies to:



Thomas H. Lee Partners, LLC

100 Federal Street

Boston, MA 02110

Attention: Anthony DiNovi & Soren Oberg



          and to:



Quadrangle Group LLC

375 Park Avenue

New York, NY 10152

Attention: Joshua Steiner & David Crosby



          with a copy to:



Ropes & Gray LLP

One International Place

Boston, Massachusetts 02110

Attention: David Chapin & Patrick Diaz



If to an Investor, to it at the address set forth in the records of the Company for it, which
shall initially be:




For the THL Investors:


Thomas H. Lee Partners, LLC




- 28 -









 







100 Federal Street

Boston, MA 02110

Attention: Anthony DiNovi & Soren Oberg



with a copy to:



Ropes & Gray LLP

One International Place

Boston, Massachusetts 02110

Attention: David Chapin & Patrick Diaz



and to:



and for the Quadrangle Investors:



Quadrangle Group LLC

375 Park Avenue

New York, NY 10152

Attention: Joshua Steiner & David Crosby



                with a copy to:



Ropes & Gray LLP

One International Place

Boston, Massachusetts 02110

Attention: David Chapin & Patrick Diaz



If to a Manager, or a permitted Transferee of a Manager, to it at the address set forth in the
records of the Company for him or her with a copy to:



Winston & Strawn LLP

35 W. Wacker Drive

Chicago, Illinois 60601-9703

Attention: Mark S. Weisberg



If to a Founder, to him or her at the address set forth in the stock record book of the Company
with a copy to:



Sullivan & Cromwell LLP

125 Broad Street

New York, NY 10004

Attention: James C. Morphy & Audra D. Cohen



Notice to the holder of record of any shares of Common Stock shall be deemed to be notice to the
holder of such shares for all purposes hereof.




- 29 -









 








     8.3. Merger; Binding Effect, Etc. This Agreement, together with the Stockholders
Agreement, and the Subscription Agreement(s) dated on or about the date hereof among the Company
and the subscribers named therein constitute the entire agreement of the parties with respect to
their subject matter, supersede all prior or contemporaneous oral or written agreements or
discussions with respect to such subject matter, and shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, representatives, successors and assigns. Except
as otherwise expressly provided herein, no party hereto may assign any of his, her or its
respective rights or delegate any of his, her or its respective obligations under this Agreement
without the prior written consent of the Company and the Majority Investors, and any attempted
assignment or delegation in violation of the foregoing shall be null and void.



     8.4. Descriptive Headings. The descriptive headings of this Agreement are for
convenience of reference only, are not to be considered a part hereof and shall not be construed to
define or limit any of the terms or provisions hereof.



     8.5. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which taken together shall constitute one instrument.



     8.6. Severability. If any provision hereof would, under applicable law, be invalid or
unenforceable in any respect, such provision shall be construed by modifying or limiting it so as
to be valid and enforceable to the maximum extent compatible with, and possible under, applicable
law. The provisions hereof are severable, and in the event any provision hereof should be held
invalid or unenforceable in any respect, it shall not invalidate, render unenforceable or otherwise
affect any other provision hereof.



     8.7. No Recourse. Notwithstanding anything that may be expressed or implied in this
Agreement, the Company and each Stockholder covenant, agree and acknowledge that no recourse under
this Agreement or any documents or instruments delivered in connection with this Agreement shall be
had against any current or future director, officer, employee, general or limited partner or member
of any Stockholder or of any Affiliate or assignee thereof, as such, whether by the enforcement of
any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or
other applicable law, it being expressly agreed and acknowledged that no personal liability
whatsoever shall attach to, be imposed on or otherwise be incurred by any current or future
officer, agent or employee of any Stockholder or any current or future member of any Stockholder or
any current or future director, officer, employee, partner or member of any Stockholder or of any
Affiliate or assignee thereof, as such, for any obligation of any Stockholder under this Agreement
or any documents or instruments delivered in connection with this Agreement for any claim based on,
in respect of or by reason of such obligations or their creation.



     8.8. Aggregation of Shares. All Shares held by an Investor or Other Investor and its
Affiliates and Affiliated Funds shall be aggregated together for purposes of determining the
availability of any rights under this Agreement. Within any Stockholder Group, the Stockholders
may allocate the ability to exercise any rights under this Agreement in any manner that such
Stockholder Group (by holders of a majority of the Shares held by such Stockholder Group)
determines. All Shares held by a Manager and any Permitted Transferee to which such



- 30 -









 







Manager has Transferred Shares shall be aggregated together for purposes of determining the
availability of any rights under this Agreement; and such Manager and such Permitted Transferees
may allocate the ability to exercise any rights under this Agreement in any manner that such group
(by holders of a majority of the Shares held by such Manager and his or her Permitted Transferees)
sees fit. All Shares held by a Founder and any Permitted Transferee to which such Founder has
Transferred Shares shall be aggregated together for purposes of determining the availability of any
rights under this Agreement; and such Founder and such Permitted Transferees may allocate the
ability to exercise any rights under this Agreement in any manner that such group (by holders of a
majority of the Shares held by such Founder and his or her Permitted Transferees) sees fit.



9. GOVERNING LAW.




     9.1. Governing Law. This Agreement and all claims arising out of or based upon this
Agreement or relating to the subject matter hereof shall be governed by and construed in accordance
with the domestic substantive laws of the State of Delaware without giving effect to any choice or
conflict of laws provision or rule that would cause the application of the domestic substantive
laws of any other jurisdiction.



     9.2. Consent to Jurisdiction. Each party to this Agreement, by its execution hereof,
(a) hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in the State of Delaware for the purpose of any action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation arising out of or based upon
this Agreement or relating to the subject matter hereof, (b) hereby waives to the extent not
prohibited by applicable law, and agrees not to assert, and agrees not to allow any of its
subsidiaries to assert, by way of motion, as a defense or otherwise, in any such action, any claim
that it is not subject personally to the jurisdiction of the above-named courts, that its property
is exempt or immune from attachment or execution, that any such proceeding brought in one of the
above-named courts is improper, or that this Agreement or the subject matter hereof may not be
enforced in or by such court and (c) hereby agrees not to commence or maintain any action, claim,
cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or investigation
arising out of or based upon this Agreement or relating to the subject matter hereof other than
before one of the above-named courts nor to make any motion or take any other action seeking or
intending to cause the transfer or removal of any such action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation to any court other than one of
the above-named courts whether on the grounds of inconvenient forum or otherwise. Notwithstanding
the foregoing, (x) to the extent that any party hereto is or becomes a party in any litigation in
connection with which it may assert indemnification rights set forth in this agreement, the court
in which such litigation is being heard shall be deemed to be included in clause (a) above; and (y)
any party to this Agreement may commence and maintain an action to enforce a judgment of any of the
above-named courts in any court of competent jurisdiction. Each party hereto hereby consents to
service of process in any such proceeding in any manner permitted by Delaware law, and agrees that
service of process by registered or certified mail, return receipt requested, at its address
specified pursuant to Section 8.2 hereof is reasonably calculated to give actual notice.



- 31 -









 





     9.3. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS
PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE
OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR
INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY
WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN
INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 9.3 CONSTITUTES A MATERIAL INDUCEMENT UPON
WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 9.3 WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.



     9.4. Exercise of Rights and Remedies. No delay of or omission in the exercise of any
right, power or remedy accruing to any party as a result of any breach or default by any other
party under this Agreement shall impair any such right, power or remedy, nor shall it be construed
as a waiver of or acquiescence in any such breach or default, or of any similar breach or default
occurring later; nor shall any such delay, omission nor waiver of any single breach or default be
deemed a waiver of any other breach or default occurring before or after that waiver.



[Signature pages follow]




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     IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement (or caused this
Agreement to be executed on its behalf by its officer or representative thereunto duly authorized)
under seal as of the date first above written.



	 	 	 	 	 
	 

	 	 	 	 
	THE COMPANY:

	 	WEST CORPORATION	 	 
	 
	 	 	 	 
	 

	 	/s/ Thomas B. Barker	 	 
	 

	 	 	 	 
	 

	 	Name: Thomas B. Barker	 	 
	 

	 	Title: Chief Executive Officer	 	 






 









 





	 	 	 	 	 
	 

	 	 	 	 
	THL INVESTORS:

	 	THOMAS H. LEE EQUITY FUND VI, L.P.	 	 
	 
	 	 	 	 
	 

	 	By: THL Equity Advisors VI, LLC, its general partner	 	 
	 

	 	By: Thomas H. Lee Partners, L.P., its sole member	 	 
	 

	 	By: Thomas H. Lee Advisors, LLC, its general partner	 	 
	 
	 	 	 	 
	 

	 	/s/ Soren L. Oberg	 	 
	 

	 	 	 	 
	 

	 	Name: Soren L. Oberg	 	 
	 

	 	Title: Managing Director	 	 
	 
	 	 	 	 
	 

	 	THOMAS H. LEE PARALLEL FUND VI, L.P.	 	 
	 

	 	By: THL Equity Advisors, VI, LLC, its general partner	 	 
	 

	 	By: Thomas H. Lee Partners, L.P., its sole member	 	 
	 

	 	By: Thomas H. Lee Advisors, LLC, its general partner	 	 
	 
	 	 	 	 
	 

	 	/s/ Soren L. Oberg	 	 
	 

	 	 	 	 
	 

	 	Name: Soren L. Oberg	 	 
	 

	 	Title: Managing Director	 	 
	 
	 	 	 	 
	 

	 	THOMAS H. LEE PARALLEL (DT) FUND VI, L.P.	 	 
	 

	 	By: THL Equity Advisors VI, LLC, its general partner	 	 
	 

	 	By: Thomas H. Lee Partners, L.P., its sole member	 	 
	 

	 	By: Thomas H. Lee Advisors, LLC, its general partner	 	 
	 
	 	 	 	 
	 

	 	/s/ Soren L. Oberg	 	 
	 

	 	 	 	 
	 

	 	Name: Soren L. Oberg	 	 
	 

	 	Title: Managing Director	 	 
	 
	 	 	 	 
	 

	 	THL COINVESTMENT PARTNERS, L.P.	 	 
	 

	 	By: Thomas H. Lee Partners, L.P., its general partner	 	 
	 

	 	By: Thomas H. Lee Advisors, LLC, its general partner	 	 
	 
	 	 	 	 
	 

	 	/s/ Soren L. Oberg	 	 
	 

	 	 	 	 
	 

	 	Name: Soren L. Oberg	 	 
	 

	 	Title: Managing Director	 	 






 









 





	 	 	 	 	 
	 

	 	 	 	 
	 

	 	THL EQUITY FUND VI INVESTORS (WEST), L.P.	 	 
	 

	 	By: THL Equity Advisors VI, LLC, its general partner	 	 
	 

	 	By: Thomas H. Lee Partners, L.P., its sole member	 	 
	 

	 	By: Thomas H. Lee Advisors, LLC, its general partner	 	 
	 
	 	 	 	 
	 

	 	/s/ Soren L. Oberg	 	 
	 

	 	 	 	 
	 

	 	Name: Soren L. Oberg	 	 
	 

	 	Title: Managing Director	 	 
	 
	 	 	 	 
	 

	 	PUTNAM INVESTMENTS HOLDINGS, LLC	 	 
	 

	 	By: Putnam Investments, LLC, its managing member	 	 
	 
	 	 	 	 
	 

	 	/s/ Soren L. Oberg	 	 
	 

	 	 	 	 
	 

	 	Name: Soren L. Oberg*	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	 

	 	PUTNAM INVESTMENTS EMPLOYEES’ SECURITIES COMPANY III LLC	 	 
	 

	 	By: Putnam Investment Holdings, LLC, its managing partner	 	 
	 

	 	By: Putnam Investments, LLC, its managing member	 	 
	 
	 	 	 	 
	 

	 	/s/ Soren L. Oberg	 	 
	 

	 	 	 	 
	 

	 	Name: Soren L. Oberg*	 	 
	 

	 	Title:	 	 








 




			
	*	 	By power of attorney




 









 








	 	 	 	 	 
	 

	 	 	 	 
	 

	 	THL FUND VI BRIDGE CORP.	 	 
	 
	 	 	 	 
	 

	 	/s/ Charles P. Holden	 	 
	 

	 	 	 	 
	 

	 	Name: Charles P. Holden	 	 
	 

	 	Title: Director and Chief Financial Officer	 	 
	 
	 	 	 	 
	 

	 	THL PARALLEL FUND VI BRIDGE CORP.	 	 
	 
	 	 	 	 
	 

	 	/s/ Charles P. Holden	 	 
	 

	 	 	 	 
	 

	 	Name: Charles P. Holden	 	 
	 

	 	Title: Director and Chief Financial Officer
	 	 
	 
	 	 	 	 
	 

	 	THL DT FUND VI BRIDGE CORP.	 	 
	 
	 	 	 	 
	 

	 	/s/ Charles P. Holden	 	 
	 

	 	 	 	 
	 

	 	Name: Charles P. Holden	 	 
	 

	 	Title: Director and Chief Financial Officer	 	 






 









 






	 	 	 	 	 
	 

	 	 	 	 
	QUADRANGLE INVESTORS:

	 	QUADRANGLE CAPITAL PARTNERS II LP	 	 
	 

	 	By: Quadrangle GP Investors II LP, its general partner	 	 
	 

	 	By: QCP GP Investors II LLC, its general partner	 	 
	 
	 	 	 	 
	 

	 	/s/ Gordon Holmes	 	 
	 

	 	 	 	 
	 

	 	Name: Gordon Holmes	 	 
	 

	 	Title: Managing Director	 	 
	 
	 	 	 	 
	 

	 	QUADRANGLE CAPITAL PARTNERS II-A LP	 	 
	 

	 	By: Quadrangle GP Investors II LP, its general partner	 	 
	 

	 	By: QCP GP Investors II LLC, its general partner	 	 
	 
	 	 	 	 
	 

	 	/s/ Gordon Holmes	 	 
	 

	 	 	 	 
	 

	 	Name: Gordon Holmes

Title: Managing Director	 	 
	 
	 	 	 	 
	 

	 	QUADRANGLE SELECT PARTNERS II LP	 	 
	 

	 	By: Quadrangle GP Investors II LP, its general partner	 	 
	 

	 	By: QCP GP Investors II LLC, its general partner	 	 
	 
	 	 	 	 
	 

	 	/s/ Gordon Holmes	 	 
	 

	 	 	 	 
	 

	 	Name: Gordon Holmes	 	 
	 

	 	Title: Managing Director	 	 






 









 






	 	 	 	 	 
	THE FOUNDERS:

	 	/s/ Gary L. West	 	 
	 

	 	 	 	 
	 

	 	Name: Gary L. West, individually	 	 
	 
	 	 	 	 
	 

	 	/s/ Mary E. West	 	 
	 

	 	 	 	 
	 

	 	Name: Mary E. West, individually	 	 






 









 






	 	 	 	 	 
	THE MANAGERS:

	 	/s/ Thomas B. Barker	 	 
	 

	 	 	 	 
	 

	 	Name: Thomas B. Barker, individually	 	 
	 
	 	 	 	 
	 

	 	/s/ Nancee R. Berger	 	 
	 

	 	 	 	 
	 

	 	Name: Nancee R. Berger, individually	 	 
	 
	 	 	 	 
	 

	 	/s/ J. Scott Etzler	 	 
	 

	 	 	 	 
	 

	 	Name: J. Scott Etzler, individually	 	 
	 
	 	 	 	 
	 

	 	/s/ Jon R. Hanson	 	 
	 

	 	 	 	 
	 

	 	Name: Jon R. Hanson, individually	 	 
	 
	 	 	 	 
	 

	 	/s/ Robert E. Johnson	 	 
	 

	 	 	 	 
	 

	 	Name: Robert E. Johnson, individually	 	 
	 
	 	 	 	 
	 

	 	/s/ Mark V. Lavin	 	 
	 

	 	 	 	 
	 

	 	Name: Mark V. Lavin, individually	 	 
	 
	 	 	 	 
	 

	 	/s/ Michael E. Mazour	 	 
	 

	 	 	 	 
	 

	 	Name: Michael E. Mazour, individually	 	 
	 
	 	 	 	 
	 

	 	/s/ Paul M. Mendlik	 	 
	 

	 	 	 	 
	 

	 	Name: Paul M. Mendlik, individually	 	 
	 
	 	 	 	 
	 

	 	/s/ Pam Mortenson	 	 
	 

	 	 	 	 
	 

	 	Name: Pam Mortenson, individually	 	 






 









 






	 	 	 	 	 
	 

	 	/s/ David C. Mussman	 	 
	 

	 	 	 	 
	 

	 	Name: David C. Mussman, individually	 	 
	 
	 	 	 	 
	 

	 	/s/ James Richards	 	 
	 

	 	 	 	 
	 

	 	Name: James Richards, individually	 	 
	 
	 	 	 	 
	 

	 	/s/ Steven M. Stangl	 	 
	 

	 	 	 	 
	 

	 	Name: Steven M. Stangl, individually	 	 
	 
	 	 	 	 
	 

	 	/s/ Michael M. Sturgeon	 	 
	 

	 	 	 	 
	 

	 	Name: Michael M. Sturgeon, individually