TeleTech Holdings, Inc. 5,000,000 Shares 1 Common Stock ($0.01 par value) Underwriting Agreement
Exhibit 10.41
EXECUTION COPY
TeleTech Holdings, Inc.
5,000,000 Shares 1
Common Stock
($0.01 par value)
Common Stock
($0.01 par value)
Underwriting Agreement
To the Representatives named
in Schedule I hereto of the
several Underwriters named in
Schedule III hereto
in Schedule I hereto of the
several Underwriters named in
Schedule III hereto
Ladies and Gentlemen:
The stockholders named in Schedule II hereto (the “Selling Stockholders”) of TeleTech
Holdings, Inc., a corporation organized under the laws of the State of Delaware (the “Company”),
propose to sell to the several underwriters named in Schedule III hereto (the “Underwriters”), for
whom you (the “Representatives”) are acting as representatives, the number of shares of common
stock, $0.01 par value (“Common Stock”), of the Company set forth in Schedule I hereto (said shares
to be sold by the Selling Stockholders collectively being hereinafter called the “Underwritten
Securities”). The Selling Stockholders named in Schedule II hereto also propose to grant to the
Underwriters an option to purchase up to the number of additional shares of Common Stock set forth
in Schedule II to cover over-allotments, if any (the “Option Securities”; the Option Securities,
together with the Underwritten Securities, being hereinafter called the “Securities”). To the
extent there are no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context requires. In addition, to the
extent that there is more than one Selling Stockholder named in Schedule II, the term Selling
Stockholder shall mean either the singular or plural. The use of the neuter in this Agreement
shall include the feminine and masculine wherever appropriate. Any reference herein to the
Registration Statement, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of
1 | Plus an option to purchase from the Selling Stockholders, up to 750,000 additional Securities to cover over-allotments. |
any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference
herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of any Preliminary Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference. Certain terms used herein are
defined in Section 20 hereof.
1. Representations and Warranties.
(i) The Company represents and warrants to, and agrees with, each Underwriter as set forth
below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration statement, as defined
in Rule 405 (the file number of which is set forth in Schedule I hereto) on Form S-3,
including a related prospectus, for registration under the Act of the offering and sale of
the Securities. Such Registration Statement, including any amendments thereto filed prior
to the Execution Time, became effective upon filing. The Company may have filed with the
Commission, as part of the Registration Statement or an amendment thereto or pursuant to
Rule 424(b), one or more preliminary prospectuses relating to the Securities, each of which
has previously been furnished to you. The Company will file with the Commission a final
prospectus relating to the Securities in accordance with Rule 424(b). As filed, such final
prospectus shall contain all information required by the Act and the rules thereunder, and,
except to the extent the Representatives shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in any Preliminary Prospectus) as the
Company has advised you, prior to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) (i) On each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined
herein) and on any date on which Option Securities are purchased, if such date is not the
Closing Date (a “settlement date”), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; (ii) at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and (iii) on the date of any filing pursuant to Rule
424(b) and on the Closing Date and any settlement date, the Final Prospectus (together with
any supplement thereto) will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that with respect to clauses (i), (ii) and (iii), the Company makes no
representations or warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it being understood and
agreed that the only such information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8(c) hereof.
(c) (i) The Disclosure Package and the price to the public, the number of Underwritten
Securities and the number of Option Securities to be included on the cover page of the Final
Prospectus, when taken together as a whole and (ii) each electronic road show when taken
together as a whole with the Disclosure Package and the price to the public, the number of
Underwritten Securities and the number of Option Securities to be included on the cover page
of the Final Prospectus, does not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The preceding sentence does
not apply to statements in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the only
such information furnished by or on behalf of any Underwriter consists of the information
described as such in Section 8(c) hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time
the Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule
163, the Company was or is (as the case may be) a “well-known seasoned issuer” as defined in
Rule 405. The Company agrees to pay the fees required by the Commission relating to the
Securities within the time required by Rule 456(b)(1) without regard to the proviso therein
and otherwise in accordance with Rules 456(b) and 457(r).
(e) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Securities, the Company was not an Ineligible Issuer (as defined in Rule
405), without taking account of any determination by the Commission pursuant to Rule 405
that it is not necessary that the Company be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus does not include any information that conflicts
with the information contained in the Registration Statement, including any document
incorporated therein by reference and any prospectus supplement deemed to be a part thereof
that has not been superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8 hereof.
(g) This Agreement has been duly authorized, executed and delivered by the Company.
(h) No consent, approval, authorization, filing with or order of any court or
governmental agency or body in respect of the Company is required in connection with the
transactions contemplated herein, except such as have been obtained under the Act and such
as may be required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in the manner contemplated
herein and in the Disclosure Package and the Final Prospectus.
(i) No holders of securities of the Company have rights to the registration of such
securities under the Registration Statement.
(j) Ernst & Young LLP, who have certified certain financial statements of the Company
and its consolidated subsidiaries and delivered their report with respect to the audited
consolidated financial statements and schedules included in the Disclosure Package and the
Final Prospectus, are independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations thereunder.
(k) There are no transfer taxes or other similar fees or charges under Federal law or
the laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement by the Company.
(l) The Company has not taken, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(m) Neither the sale of the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will conflict with,
result in a breach or violation of, or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries pursuant to, (i) the
charter or by-laws of the Company or any of its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the Company or any of its
subsidiaries is a party or bound or to which its or their property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties, except in the case of clauses (ii) and (iii)
for conflicts, breaches, violations, liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a whole,
or the ability of the Company to execute, deliver and perform its obligations under this
Agreement.
(n) No action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries or its
or their property is pending or, to the best knowledge of the Company, threatened that (i)
could reasonably be expected to have a material adverse effect on the performance by the
Company of this Agreement or the consummation by the Company of any of the transactions
contemplated hereby or (ii) could reasonably be expected to have a material adverse effect
on the condition (financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto).
(o) Neither the Company nor any Significant Subsidiary is in violation or default of
(i) any provision of its charter or bylaws, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or bound or to which
its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or such Significant Subsidiary or
any of its properties, as applicable, which violation or default would, in the case of
clauses (ii) and (iii) above, either individually or in the aggregate with all other
violations and defaults referred to in this paragraph (o) (if any), have a material adverse
effect on the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus.
(p) No labor problem or dispute with the employees of the Company or any of its
subsidiaries exists or is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or its subsidiaries’
principal suppliers, contractors or customers, that could have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto).
(q) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
and the money laundering statutes and the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the best knowledge of the
Company, threatened that (i) could reasonably be expected to have a material adverse effect
on the performance by the Company of this Agreement or the consummation by the Company of
any of the transactions contemplated hereby or (ii) could reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
(r) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”) that (i) could reasonably be
expected to have a material adverse effect on the performance by the Company of this
Agreement or the consummation by the Company of any of the transactions contemplated hereby
or (ii) could reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any supplement thereto).
(s) The Company and its subsidiaries possess all licenses, certificates, permits and
other authorizations issued by all applicable authorities necessary to conduct their
respective businesses, and neither the Company nor any such subsidiary has received any
notice of proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any supplement thereto).
(t) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (the “FCPA”), including, without limitation, making use
of the mails or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the
FCPA; and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates
have conducted their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
(ii) Each Selling Stockholder severally, but not jointly, represents and warrants to, and
agrees with, each Underwriter that:
(a) The Selling Stockholder is the record and beneficial owner of the Securities free
and clear of all liens, encumbrances, equities or claims and has duly executed a stock power
in blank with respect to such Securities, and assuming that each Underwriter acquires its
interest in the Securities it has purchased without notice of any adverse claim (within the
meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) as of the
Closing Date, each Underwriter that has purchased Securities delivered on the date hereof to
the Depository Trust Company (“DTC”) by making payment therefor, as provided herein, and
that has had such Securities credited to the securities account or accounts of such
Underwriter maintained with DTC will have acquired a security entitlement (within the
meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such
Underwriter, and no action based on an adverse claim (within the meaning of Section 8-102 of
the UCC), may be asserted as of the Closing Date against such Underwriter with respect to
such Securities.
(b) This Agreement has been duly authorized, executed and delivered by such Selling
Stockholder.
(c) Such Selling Stockholder has not taken, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities.
(d) No consent, approval, authorization or order of any court or governmental agency or
body is required for the consummation by such Selling Stockholder of the transactions
contemplated herein, except such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other approvals as have been
obtained.
(e) Neither the sale of the Securities being sold by such Selling Stockholder nor the
consummation of any other of the transactions herein contemplated by such Selling
Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will conflict
with, result in a breach or violation of, or constitute a default under (i) any law which
would, either individually or in the aggregate with all other breaches and violations
referred to in this paragraph (e) (if any), have a material adverse effect on the ability of
such Selling Stockholder to execute, deliver and perform its obligations under this
Agreement, (ii) the partnership agreement, trust agreement, charter or by-laws of the
Selling Stockholder, (iii) the terms of any indenture or other agreement or instrument to
which such Selling Stockholder is a party or bound, or (iv) any judgment, order or decree
applicable to such Selling Stockholder of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder.
(f) The sale of Securities by such Selling Stockholder pursuant hereto is not prompted
by any information concerning the Company or any of its subsidiaries which is not set forth
in the Disclosure Package and the Final Prospectus or any amendment or supplement thereto.
(g) In respect of any statements in or omissions from the Registration Statement, the
Final Prospectus, any Preliminary Prospectus or any Free Writing Prospectus or any amendment
or supplement thereto used by the Company or any Underwriter, as the case may be, made in
reliance upon and in conformity with information furnished in writing to the Company or to
the Underwriters by any Selling Stockholder specifically for use in connection with the
preparation thereof, such Selling Stockholder hereby makes the same representations and
warranties to each Underwriter as the Company makes to such Underwriter under paragraphs
(i)(b) (excluding clause (i) therein), (i)(c) or (i)(f) of this Section.
Any certificate signed by any partner, officer, or trustee of any Selling Stockholder and
delivered to the Representatives or counsel for the Underwriters in connection with the offering of
the Securities shall be deemed a representation and warranty by such Selling Stockholder, as to
matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Selling Stockholders agree,
severally and not jointly, to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Selling Stockholders, at the purchase price
set forth in Schedule I hereto, the number of Underwritten Securities set forth opposite
such Underwriter’s name in Schedule III hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Selling Stockholders named in Schedule II hereto hereby
grant an option to the several Underwriters to purchase, severally and not jointly, up to
the number of Option Securities set forth in Schedule II hereto at the same purchase price
per share as the Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time (but not more
than once) on or before the 30th day after the date of the Final Prospectus upon written
notice by the Representatives to the Company and such Selling Stockholders setting forth the
number of Option Securities as to which the several Underwriters are exercising the option
and the settlement date. In the event that the Underwriters exercise less than their full
over-allotment option, the number of Option Securities to be sold by each Selling
Stockholder listed on Schedule II shall be, as nearly as practicable, in the same proportion
as the maximum number of Option Securities to be sold by each Selling Stockholder and the
number of Option Securities to be sold. The number of Option Securities to be purchased by
each Underwriter shall be the same percentage of the total
number of Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as you
in your absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten Securities and
the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised
on or before the third Business Day immediately preceding the Closing Date) shall be made on the
date and at the time specified in Schedule I hereto, or at such time on such later date not more
than three Business Days after the foregoing date as the Representatives shall designate, which
date and time may be postponed by agreement among the Representatives, the Company and the Selling
Stockholders or as provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the “Closing Date”). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the respective aggregate purchase prices of the
Securities being sold by each of the Selling Stockholders to or upon the order of the Selling
Stockholders by wire transfer payable in same-day funds to the accounts specified by the Selling
Stockholders. Delivery of the Underwritten Securities and the Option Securities shall be made
through the facilities of The Depository Trust Company unless the Representatives shall otherwise
instruct.
Each Selling Stockholder will pay all applicable state transfer taxes, if any, involved in the
transfer to the several Underwriters of the Securities to be purchased by them from such Selling
Stockholder and the respective Underwriters will pay any additional stock transfer taxes involved
in further transfers.
If the option provided for in Section 2(b) hereof is exercised after the third Business Day
immediately preceding the Closing Date, the Selling Stockholders named in Schedule II hereto will
deliver the Option Securities (at the expense of the Selling Stockholders) to the Representatives
on the date specified by the Representatives (which shall be at least three Business Days after
exercise of said option) for the respective accounts of the several Underwriters, against payment
by the several Underwriters through the Representatives of the purchase price thereof to or upon
the order of the Selling Stockholders by wire transfer payable in same-day funds to the accounts
specified by the Selling Stockholders. If settlement for the Option Securities occurs after the
Closing Date, the Company and such Selling Stockholders will deliver to the Representatives on the
settlement date for the Option Securities, and the obligation of the Underwriters to purchase the
Option Securities shall be conditioned upon receipt of, if requested by the Representatives,
supplemental opinions, certificates and letters confirming as of such date the opinions,
certificates and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Final Prospectus.
5. Agreements.
(i) The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement (including the Final
Prospectus) to the prospectus included in the Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object, except that the Company may file any
report that, in the written opinion of Company’s outside counsel, is required to be filed so
as to cause the Company to be in compliance with the Rules of the Exchange Act. The Company
will cause the Final Prospectus, properly completed, and any supplement thereto to be filed
in a form approved by the Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company will promptly advise
the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to
termination of the offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iii) of any request by the Commission or its
staff for any amendment of the Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any notice
objecting to its use or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the occurrence of any such suspension or
objection to the use of the Registration Statement and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of such stop order or
relief from such occurrence or objection, including, if necessary, by filing an amendment to
the Registration Statement or a new registration statement and using its best efforts to
have such amendment or new registration statement declared effective as soon as practicable.
(b) If any event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made at such time
not misleading, the Company will (i) notify promptly the Representatives so that any use of
the Disclosure Package may cease until it is amended or supplemented; (ii) amend or
supplement the Disclosure Package or, if then available provide the Final Prospectus to
correct such statement or omission; and (iii) supply any amendment or supplement to you in
such quantities as you may reasonably request.
(c) If, at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances
under which they were made or the circumstances then prevailing not misleading, or if it
shall be necessary to amend the Registration Statement, file a new registration statement or
supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, including in connection with use or
delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives
of any such event, (ii) prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 5, an amendment or supplement or new registration statement
which will correct such statement or omission or effect such compliance, (iii) use its best
efforts to have any amendment to the Registration Statement or new registration statement
declared effective as soon as practicable in order to avoid any disruption in use of the
Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities
as you may reasonably request.
(d) As soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the Company and
its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits thereto) and
to each other Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the
Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer
Free Writing Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production of all documents
relating to the offering.
(f) The Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(g) The Company agrees that, unless it has or shall have obtained the prior written
consent of the Representatives, and each Underwriter, severally and not jointly, agrees with
the Company that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Company, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433; provided that the
prior written consent of the parties hereto shall be deemed to have been given in respect of
the Free Writing Prospectuses included in Schedule IV hereto and any electronic road show.
Any such free writing prospectus consented to by the Representatives or the Company is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that
(x) it has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as
the case may be, with the requirements of Rules 164
and 433 applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping.
(h) The Company will not, without the prior written consent of each of Citigroup Global
Markets Inc. and Xxxxxx Xxxxxxx & Co. Incorporated, offer, sell, contract to sell, pledge,
or otherwise dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition of (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or any affiliate of the
Company), directly or indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Exchange Act, any other shares of Common Stock or any securities
convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly
announce an intention to effect any such transaction, until the Business Day set forth on
Schedule I hereto, provided, however, that the Company may (i) grant options
to purchase shares of Common Stock and issue shares of Common Stock under the Company’s
equity incentive plans in effect at the Execution Time, (ii) issue Common Stock upon the
conversion of securities or the exercise of warrants or options outstanding or granted under
the Company’s equity incentive plans in effect at the Execution Time and (iii) issue Common
Stock in connection with acquisitions of businesses or assets. Notwithstanding the
foregoing, if (x) during the last 17 days of such restricted period the Company issues an
earnings release or material news or a material event relating to the Company occurs, or (y)
prior to the expiration of the restricted period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the restricted
period, the restrictions imposed in this clause shall continue to apply until the expiration
of the 18-day period beginning on the issuance of the earnings release or the occurrence of
the material news or material event. The Company will provide the Representatives and any
co-managers and each individual subject to the restricted period pursuant to the lockup
letters described in Section 6(m) with prior notice of any such announcement that gives rise
to an extension of the restricted period.
(i) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and
each amendment or supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus
and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them,
as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Securities; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Securities; (v) the
registration of the Securities under the Exchange Act and the listing of the Securities on
the NASDAQ Global Select Market; (vi) any registration or qualification of the Securities
for offer and sale under the securities or blue sky laws of the several states (including
filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to
such registration and qualification); (vii) any filings required to be made with the NASD,
Inc. (including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s
accountants and the fees and expenses of counsel (including local and special counsel) for
the Company; and (x) all other costs and expenses incident to the performance by the Company
of its obligations hereunder.
(ii) Each Selling Stockholder agrees with the several Underwriters that:
(a) Such Selling Stockholder will not, without the prior written consent of each of
Citigroup Global Markets Inc. and Xxxxxx Xxxxxxx & Co. Incorporated, offer, sell, contract
to sell, pledge or otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or otherwise) by the
Selling Stockholder or any affiliate of the Selling Stockholder or any person in privity
with the Selling Stockholder or any affiliate of the Selling Stockholder) directly or
indirectly, or file (or participate in the filing of) a registration statement with the
Commission in respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the Exchange Act
with respect to, any shares of Common Stock of the Company or any securities convertible
into or exercisable or exchangeable for, shares of Common Stock; or publicly announce an
intention to effect any such transaction, until the Business Day set forth on Schedule I
hereto, other than (i) shares of Common Stock or Common Stock equivalents as a bona fide
gift or gifts; to any trust for the direct or indirect benefit of such Selling Stockholder
or such Selling Stockholder’s family; as a distribution to partners, members or stockholders
of such Selling Stockholder, to such Selling Stockholder’s affiliates or to any investment
fund or other entity controlled or managed by such Selling Stockholder; to any beneficiary
of such Selling Stockholder pursuant to a will or other testamentary document or applicable
laws of descent; or to any corporation, partnership, limited liability company or other
entity all of the beneficial ownership interests of which are held by the Selling
Stockholder or the immediate family members of such Selling Stockholder; in each case
provided that (1) the recipient or recipients thereof agree to be bound in writing by the
restrictions set forth herein, (2) any such transfer shall not involve a disposition for
value, and (3) the Selling Stockholder is not required to, or does not otherwise, make any
public filing or report regarding such transfers; and (ii) the
surrender of options to purchase shares of Common Stock to satisfy the applicable
aggregate exercise price (and applicable withholding taxes, if applicable, required to be
paid) of options to purchase shares of Common Stock. Notwithstanding the foregoing, if (x)
during the last 17 days of the restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs, or (y) prior to the
expiration of the restricted period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the restricted period, the
restrictions imposed in this clause shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the occurrence of the
material news or material event.
(b) Such Selling Stockholder will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if requested by you, will
confirm such advice in writing, so long as delivery of a prospectus relating to the
Securities by an underwriter or dealer may be required under the Act, of any material change
in information in the Registration Statement, the Final Prospectus, any Preliminary
Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement thereto
relating to such Selling Stockholder.
(d) Such Selling Stockholder represents that it has not prepared or had prepared on its
behalf or used or referred to, and agrees that it will not prepare or have prepared on its
behalf or use or refer to, any Free Writing Prospectus, and has not distributed and will not
distribute any written materials in connection with the offer or sale of the Securities.
(e) The Selling Stockholders (in proportion to the number of Securities being offered
by each of them, including any Option Securities which the Underwriters shall have elected
to purchase) agree to pay the costs and expenses relating to the following matters: (i) the
fees and expenses of counsel (including local and special counsel) for the Selling
Stockholders and (ii) all other costs and expenses incident to the performance by the
Selling Stockholders of their obligations hereunder.
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be,
shall be subject to the accuracy of the representations and warranties on the part of the Company
and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and
the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the
performance by the Company and the Selling Stockholders of their respective obligations hereunder
and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); any material required to be
filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with
the Commission within the applicable time periods prescribed for such filings by Rule 433;
and no stop order suspending the effectiveness of the Registration Statement or any notice
objecting to its use shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx, counsel for the
Company, to have furnished to the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) the Registration Statement has become effective under the Act; any required
filing of any Preliminary Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any notice objecting
to its use has been issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Final Prospectus (other than the
financial statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the Exchange Act
and the respective rules thereunder; and such counsel has no reason to believe that
at the Execution Time the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Final Prospectus
as of its date and on the Closing Date included or includes any untrue statement of
a material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made,
not misleading (in each case, other than the financial statements and other
financial information contained therein, as to which such counsel need express no
opinion);
(ii) such counsel has no reason to believe that the Disclosure Package, as
amended or supplemented at the Execution Time, and the price to the public, the
number of Underwritten Securities and the number of Option Securities to be included
on the cover page of the Prospectus, when taken together as a whole, contained any
untrue statement of a material fact or omitted to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (other than the financial statements and other
financial information contained therein, as to which such counsel need express no
opinion);
(iii) the Company’s authorized equity capitalization is as set forth in the
Disclosure Package and the Final Prospectus; the capital stock of the Company
conforms to the description thereof contained in the Disclosure Package and the
Final Prospectus; the Securities being sold by the Selling Stockholders have been
duly and validly authorized and issued and are fully paid and nonassessable; the
Securities being sold by the Selling Stockholders are duly listed, and admitted and
authorized for trading, on the NASDAQ Global Select Market; and the holders of
outstanding shares of capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities;
(iv) this Agreement has been duly authorized, executed and delivered by the
Company;
(v) the Company is not required to register as an “investment company” as
defined in the Investment Company Act of 1940, as amended;
(vi) the statements included in any Preliminary Prospectus and the Final
Prospectus under the caption “Description of Capital Stock” fairly summarize in all
material respects the provisions of the certificate of incorporation and by-laws of
the Company relating to the Common Stock; and
(vii) no consent, approval, authorization, filing with or order of any court or
governmental agency or body under United States federal or New York state law that
in such counsel’s experience is normally applicable to general business corporations
in relation to transactions of the type contemplated by this Agreement is required
for the execution, delivery and performance by the Company of its obligations under
this Agreement, except such as have been obtained under the Act and such as may be
required under state securities or Blue Sky laws in connection with the offer and
sale of the Securities.
In rendering such opinion, such counsel may rely (A) as to matters involving the application
of laws of any jurisdiction other than the States of New York and Delaware or the Federal
laws of the United States, to the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they believe to be reliable and who
are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b) shall also include any
supplements thereto at the Closing Date.
(c) The Company shall have requested and caused Xxxx Xxxxxxxxx, Executive Vice
President, General Counsel and Secretary for the Company, to have furnished to the
Representatives his opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) each of the Company and each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized, with full corporate
power and authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Disclosure Package and the
Final Prospectus, and is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified or in good standing
would not have a material adverse effect on the financial condition, earnings
or business of the Company and its subsidiaries, taken as a whole;
(ii) all the outstanding shares of capital stock of each Significant Subsidiary
have been duly and validly authorized and issued and are fully paid and
nonassessable, and, except with respect to liens created by the Amended and Restated
Credit Arrangement among TeleTech Holdings, Inc., as Borrower, the Lenders named
therein, as Lenders and Keybank National Association, as Lead Arranger, Sole Book
Runner and Administrative Agent dated as of September 28, 2006, all outstanding
shares of capital stock of each Significant Subsidiary are owned by the Company
either directly or through wholly owned subsidiaries free and clear of any perfected
security interest and, to the knowledge of such counsel, after due inquiry, any
other security interest, claim, lien or encumbrance;
(iii) the outstanding shares of Common Stock have been duly and validly
authorized and issued and are fully paid and nonassessable; and except as set forth
in the Disclosure Package and the Final Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to convert
any obligations into or exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding;
(iv) there is no pending or, to the knowledge of such counsel, threatened
action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its subsidiaries or its or
their property, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in any Preliminary Prospectus and the
Final Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not described or filed as
required;
(v) neither the issue and sale of the Securities, nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or its
subsidiaries pursuant to, (i) the charter or by-laws of the Company or its
subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or its subsidiaries is a party or bound
or to which its or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or its subsidiaries
of any court, regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or its subsidiaries or any
of its or their properties, except in the case of clauses (ii) and (iii) for
conflicts, breaches, violations, liens, charges or encumbrances that would not have
a material adverse effect on the financial condition, earnings or business of the
Company and its subsidiaries, taken as a whole, or the ability of the
Company to execute, deliver and perform its obligations under this Agreement;
and
(vi) no holders of securities of the Company have rights to the registration of
such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters involving the application
of laws of any jurisdiction other than the States of New York, Colorado and Delaware or the Federal
laws of the United States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory
to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(d) The Selling Stockholders shall have requested and caused Xxxx, Xxxxxx & Xxxxxxxxx
LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their
opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by the
Selling Stockholders, and each Selling Stockholder has all requisite power and
authority to sell, transfer and deliver in the manner provided in this Agreement the
Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it
has purchased from such Selling Stockholder without notice of an adverse claim
(within the meaning of Section 8-105 of the UCC) as of the Closing Date, each
Underwriter that has purchased such Securities delivered on the Closing Date to The
Depository Trust Company or other securities intermediary by making payment therefor
as provided herein, and that has had such Securities credited to the securities
account or accounts of such Underwriters maintained with The Depository Trust
Company or such other securities intermediary, will have acquired a security
entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such
Securities purchased by such Underwriter, and no action based on an adverse claim
(within the meaning of Section 8-102 of the UCC) to such security entitlement may be
asserted as of the Closing Date against such Underwriter with respect to such
Securities;
(iii) no consent, approval, authorization or order of any court or governmental
agency or body is required for the consummation by any Selling Stockholder of the
transactions contemplated herein, except such as may have been obtained under the
Act and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the Underwriters
and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by any Selling Stockholder
nor the consummation of any other of the transactions herein contemplated by any
Selling Stockholder or the fulfillment of the terms hereof by any Selling
Stockholder will conflict with, result in a breach or violation of, or constitute a
default under any law or under the partnership agreement, trust agreement, charter
or By-laws of the Selling Stockholder or, except as already waived, the terms of any
indenture or other agreement or instrument known to such counsel and to which any
Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment,
order or decree known to such counsel to be applicable to any Selling Stockholder or
any of its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over any Selling Stockholder or
any of its subsidiaries.
In rendering such opinion, such counsel may rely (A) as to matters involving the application
of laws of any jurisdiction other than the States of New York, Delaware, and Illinois, or
the Federal laws of the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe to be reliable
and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to
the extent they deem proper, on certificates of the Selling Stockholders and public
officials.
(e) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed
to the Representatives, with respect to the issuance and sale of the Securities, the
Registration Statement, the Disclosure Package, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives may reasonably require,
and the Company and each Selling Stockholder shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chairman of the Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the Disclosure Package,
the Final Prospectus and any supplements or amendments thereto, as well as each electronic
road show used in connection with the offering of the Securities, and this Agreement and
that:
(i) the representations and warranties of the Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use has been issued and no proceedings
for that purpose have been instituted or, to the Company’s knowledge,
threatened; and
(iii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto),
there has been no material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any supplement thereto).
(g) Each Selling Stockholder shall have furnished to the Representatives a certificate,
signed by the partner, the trustee, the Chairman of the Board or the President and the
principal financial or accounting officer of such Selling Stockholder, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined the
Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free
Writing Prospectus and any supplements or amendments thereto and this Agreement, and that
the representations and warranties of such Selling Stockholder in this Agreement are true
and correct in all material respects on and as of the Closing Date to the same effect as if
made on the Closing Date.
(h) The Company shall have requested and caused Ernst & Young, LLP to have furnished to
the Representatives, at the Execution Time and at the Closing Date, letters (which may refer
to letters previously delivered to one or more of the Representatives), dated respectively
as of the Execution Time and as of the Closing Date, in form and substance satisfactory to
the Representatives.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to in paragraph (g) of
this Section 6 or (ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and
the Final Prospectus (exclusive of any amendment or supplement thereto).
(j) Prior to the Closing Date, the Company and the Selling Stockholders shall have
furnished to the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(k) The Securities shall have been listed and admitted and authorized for trading on
the NASDAQ Global Select Market, and satisfactory evidence of such actions shall have been
provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a
letter substantially in the form of Exhibits A-1 and A-2 hereto from each officer that is
subject to Section 16 of the Exchange Act and director of the Company, addressed to the
Representatives.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company and each Selling Stockholder in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered on the Closing
Date at the closing location specified in Schedule I hereto.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Company or any Selling
Stockholder to perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Citigroup Global Markets Inc. and Xxxxxx Xxxxxxx & Co. Incorporated on demand for
all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred
by them in connection with the proposed purchase and sale of the Securities. If the Company is
required to make any payments to the Underwriters under this Section 7 because of any Selling
Stockholder’s refusal, inability or failure to satisfy any condition to the obligations of the
Underwriters set forth in Section 6, the Selling Stockholders pro rata in proportion to the
percentage of Securities to be sold by each shall reimburse the Company on demand for all amounts
so paid.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in any amendment
thereof, or in any Preliminary Prospectus, the Final Prospectus or any Issuer
Free Writing Prospectus or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each of the Selling Stockholders, severally and not jointly, agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter, each person who controls any Underwriter within the meaning of either the Act
or the Exchange Act and the Company against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any Preliminary
Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only with reference to written information
relating to such Selling Stockholder furnished to the Company or the Underwriters
specifically for inclusion in the documents referred to in the foregoing indemnity, which,
for the purposes of this Agreement, the parties hereto agree is only the information
furnished to the Company by or on behalf of any Selling Stockholder about such Selling
Stockholder set forth in “Selling Stockholders” in the Disclosure Package and the Final
Prospectus, and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action. This indemnity agreement will be in
addition to any liability which such Selling Stockholder may otherwise have. The liability
of each Selling Stockholder under such Selling Stockholder’s representations and warranties
contained in Section 1 hereof and under the indemnity and contribution agreements contained
in this Section 8 shall be limited to an amount equal to the initial public offering price
of the Securities sold by such Selling Stockholder to the Underwriters. The Company and the
Selling Stockholders may agree, as among themselves and without limiting the rights of the
Underwriters under this Agreement, as to the respective amounts of such liability for which
they shall be responsible.
(c) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
each of the Company and each Selling Stockholder, each of their directors, each
of their officers who signs the Registration Statement, and each person who controls
the Company or each Selling Stockholder within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The Company and each
Selling Stockholder acknowledge that the statements set forth (i) in the last paragraph of
the cover page regarding delivery of the Securities and, under the heading “Underwriting”,
(ii) the list of Underwriters and their respective participation in the sale of the
Securities, (iii) the sentences related to concessions and reallowances and (iv) the
paragraph related to stabilization, and syndicate covering transactions in the Preliminary
Prospectus and the Final Prospectus constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in the Preliminary Prospectus, the
Final Prospectus or any Issuer Free Writing Prospectus.
(d) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a), (b) or (c) above unless
and to the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a), (b) or (c) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice
at the indemnifying party’s expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
party’s election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out of such
claim, action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a), (b), (c) or (d) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Selling Stockholders, jointly and severally, and the
Underwriters severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection with
investigating or defending the same) (collectively “Losses”) to which the Company, the
Selling Stockholders and one or more of the Underwriters may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand, and by the Underwriters on the other, from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except
as may be provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any reason, the
Company and the Selling Stockholders, jointly and severally, and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of each of the Company and the Selling Stockholders on
the one hand, and the Underwriters on the other, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company and the Selling Stockholders shall be
deemed to be equal to the total net proceeds from the offering (before deducting expenses)
received by them, and benefits received by the Underwriters shall be deemed to be equal to
the total underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information provided by the
Company or the Selling Stockholders on the one hand, or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company, the Selling Stockholders
and the Underwriters agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (e), no person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the Exchange Act and
each trustee, partner, director, officer, employee and agent of an Underwriter shall have
the same rights to contribution as such Underwriter, each person who controls a Selling
Stockholder within the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of a Selling Stockholder shall have the same rights to
contribution as such Selling Stockholder and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (e).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however, that
in the event that the aggregate amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter, the Selling Stockholders or the Company. In the event of a default
by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company, the Selling Stockholders and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Selling Stockholders and the Company
prior to delivery of and payment for the Securities, if at any time prior to such payment and
delivery (i) trading in the Company’s Common Stock shall have been suspended by the Commission or
the NASDAQ Global Select Market or trading in securities generally on the New York Stock Exchange
or the NASDAQ Global Select Market shall have been suspended or limited or minimum prices shall
have been established on either of such exchanges, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a national emergency or
war, or other calamity or crisis the effect of which on financial markets is such as to make it, in
the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus
(exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers, of
each Selling Stockholder and of the Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or on behalf of any
Underwriter, any Selling Stockholder or the Company or any of the officers, directors,
employees, agents or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be (a) mailed, delivered or telefaxed to the
Citigroup Global Markets Inc. General Counsel (fax no.: (000) 000-0000) and confirmed to the
General Counsel, Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: General Counsel; and (b) mailed, delivered or telefaxed to Xxxxxx Xxxxxxx & Co.
Incorporated General Counsel (fax no.: (000) 000-0000) and confirmed to the General Counsel, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000; or, if sent to the Company, will be mailed, delivered or
telefaxed to (000) 000-0000 and confirmed to it at TeleTech Holdings, Inc., 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000-0000, attention: General Counsel; or if sent to any Selling
Stockholder, will be mailed, delivered or telefaxed and confirmed to it at the address set forth in
Schedule II hereto.
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. No Fiduciary Duty. The Company and the Selling Stockholders hereby acknowledge
that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length
commercial transaction between the Selling Stockholders, on the one hand, and the Underwriters and
any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as
principal and not as an agent or fiduciary of the Company or the Selling Stockholders and (c) the
engagement of the Underwriters by the Selling Stockholders in connection with the
offering and the process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Company and the Selling Stockholders agree that they are solely
responsible for making their own judgments in connection with the offering (irrespective of whether
any of the Underwriters has advised or is currently advising the Company or the Selling
Stockholders on related or other matters). The Company and the Selling Stockholders agree that it
will not claim that the Underwriters have rendered advisory services of any nature or respect, or
owe an agency, fiduciary or similar duty to them, in connection with such transaction or the
process leading thereto.
15. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
16. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17. Waiver of Jury Trial. The Company and the Selling Stockholders hereby irrevocably
waive, to the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
18. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
19. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
20. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Preliminary Prospectus used most recently prior
to the Execution Time, (ii) the Issuer Free Writing Prospectuses, if any, identified in
Schedule IV hereto, and (iii) any other Free Writing Prospectus that the parties hereto
shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“Final Prospectus” shall mean the prospectus relating to the Securities that was first
filed pursuant to Rule 424(b) after the Execution Time.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus referred to in paragraph
1(i)(a) above which is used prior to the filing of the Final Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph
1(i)(a) above, including exhibits and financial statements and any prospectus relating to
the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of
such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in
the event any post-effective amendment thereto.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430B”, and “Rule 433” refer to such rules under the Act.
“Significant Subsidiary” shall mean a subsidiary of the Company which is a “significant
subsidiary” of the Company as defined in Item 1.02(w) of Regulation S-X promulgated by the
Commission.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in
Rule 405.
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company, the Selling Stockholders and the several
Underwriters.
Very truly yours, | ||||
TeleTech Holdings, Inc. | ||||
By: | ||||
Name: | ||||
Title: | ||||
Kenra Family, LLP | ||||
By: | ||||
Name: | ||||
Title: | ||||
Xxxxxxx Limited Liability Limited Partnership | ||||
By: | ||||
Name: | ||||
Title: | ||||
Xxxxxxx Family Irrevocable Trust | ||||
By: | ||||
Name: | ||||
Title: | ||||
Xxxxxxx Family Foundation | ||||
By: | ||||
Name: | ||||
Title: |
KDT Family, LLLP | ||||
By: | ||||
Name: | ||||
Title: |
The foregoing Agreement is hereby confirmed and accepted as of the date specified in Schedule I hereto. | ||||
Citigroup Global Markets Inc. | ||||
By: |
||||
Name: | ||||
Title: | ||||
Xxxxxx Xxxxxxx & Co. Incorporated | ||||
By: |
||||
Name: | ||||
Title: | ||||
For themselves and the other several Underwriters, if any, named in Schedule III to the foregoing Agreement. |
SCHEDULE I
Underwriting Agreement dated March 29, 2007
Registration Statement No. 333-141423
Representative(s):
|
Citigroup Global Markets | |
Xxxxxx Xxxxxxx & Co. Incorporated |
Number of Underwritten Securities and Purchase Price:
Aggregate Number of Underwritten Securities to be sold by the Selling Stockholders:
5,000,000
Aggregate Number of Option Securities to be sold by the Selling Stockholders: 750,000
Price per Share to Public: $36.50
Price per Share to the Underwriters: $34.74625
Closing Date, Time and Location: April 4, 2007 at 9:30 a.m. at Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Date referred to in Section 5(i)(h) after which the Company may offer or sell securities issued by
the Company without the consent of the Representative(s): The date 90 days after the date of this
Agreement.
Date referred to in Section 5(ii)(a) after which the Selling Stockholders may offer or sell
securities issued by the Company without the consent of the Representative(s): The date 120 days
after the date of this Agreement.
Modification of items to be covered by the letter from Ernst & Young, LLP delivered pursuant to
Section 6(h) at the Execution Time: None
I-1
SCHEDULE II
Number of | Maximum Number of | |||||||
Underwritten Securities | Option Securities | |||||||
Selling Stockholders: | to be Sold | to be Sold | ||||||
Kenra Family, LLP c/o Mantucket Capital Management Corporation 0000 XXX Xxxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000 Fax no.: (000) 000-0000 |
100,000 | 0 | ||||||
KDT Family, LLLP c/o Mantucket Capital Management Corporation 0000 XXX Xxxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000 Fax no.: (000) 000-0000 |
4,475,194 | 750,000 | ||||||
Xxxxxxx Limited Liability
Limited Partnership c/o Mantucket Capital Management Corporation 0000 XXX Xxxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000 Fax no.: (000) 000-0000 |
106,895 | 0 | ||||||
Xxxxxxx Family
Irrevocable Trust c/o Mantucket Capital Management Corporation 0000 XXX Xxxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000 Fax no.: (000) 000-0000 |
17,911 | 0 | ||||||
Xxxxxxx Family Foundation c/o Mantucket Capital Management Corporation 0000 XXX Xxxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000 Fax no.: (000) 000-0000 |
300,000 | 0 | ||||||
Total |
5,000,000 | 750,000 | ||||||
II-1
SCHEDULE III
Number of Underwritten | ||||
Underwriters | Securities to be Purchased | |||
Citigroup Global Markets Inc. |
1,548,000 | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
1,548,000 | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
833,500 | |||
Credit Suisse Securities (USA) LLC |
595,500 | |||
Xxxxx-Xxxxxx Capital Group LLC |
295,000 | |||
Xxxxx Partners, Inc. |
180,000 | |||
Total |
5,000,000 | |||
III-1
SCHEDULE IV
Schedule of Free Writing Prospectuses included in the Disclosure Package
None
IV-1
[Form of Lock-Up Agreement]
EXHIBIT A-1
[Letterhead of officer or director of TeleTech Holdings, Inc.]
TeleTech Holdings, Inc.
Public Offering of Common Stock
Public Offering of Common Stock
March , 2007
Citigroup Global Markets Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement
(the “Underwriting Agreement”), among TeleTech Holdings, Inc., a Delaware corporation (the
“Company”), the Selling Stockholders named in Schedule II thereto and each of you as
representatives of a group of Underwriters named therein, relating to an underwritten public
offering of Common Stock, $0.01 par value (the “Common Stock”), of the Company.
In order to induce you and the other Underwriters to enter into the Underwriting Agreement,
the undersigned will not, without the prior written consent of each of Citigroup Global Markets
Inc. and Xxxxxx Xxxxxxx & Co. Incorporated, offer, sell, contract to sell, pledge or otherwise
dispose of, (or enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition of (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any
person in privity with the undersigned or any affiliate of the undersigned), directly or
indirectly, including the filing (or participation in the filing) of a registration statement with
the Securities and Exchange Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning of Section 16 of
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities
and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the
Company or any securities convertible into or exercisable or exchangeable for such capital stock,
or publicly announce an intention to effect any such transaction, for a period of 90 days after the
date of the Underwriting Agreement, other than (i) transfers of shares of Common Stock or Common
Stock equivalents as a bona fide gift or by will or intestacy, provided that the recipient or
recipients thereof agree to be bound in writing by the restrictions set forth herein; (ii) the
surrender of options to purchase shares of Common Stock to satisfy the applicable aggregate
exercise price (and applicable withholding taxes, if applicable, required to be paid) of options to
purchase shares of Common Stock; (iii) transactions pursuant to a trading plan established pursuant
to Rule 10b5-1 under the Securities Exchange Act of 1934, as amended, in existence as of the date
the Underwriting Agreement is signed and delivered; or (iv) the establishment of a trading plan
established pursuant to Rule 10b5-1 under the Securities
A1-1
[Form of Lock-Up Agreement]
EXHIBIT A-1
Exchange Act of 1934, as amended, so long as any sales made under the plan are made after the
expiration of the lock-up period established by this letter.
If (i) the Company issues an earnings release or material news, or a material event relating
to the Company occurs, during the last 17 days of the lock-up period, or (ii) prior to the
expiration of the lock-up period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the lock-up period, the restrictions imposed
by this agreement shall continue to apply until the expiration of the 18-day period beginning on
the issuance of the earnings release or the occurrence of the material news or material event,
unless each of Citigroup Global Markets Inc. and Xxxxxx Xxxxxxx & Co. Incorporated waives, in
writing, such extension. The undersigned hereby acknowledges that the Company has agreed in the
Underwriting Agreement to provide written notice of any event that would result in an extension of
the Lock-Up Period and agrees that any such notice properly delivered will be deemed to have been
given to, and received by, the undersigned.
A1-2
[Form of Lock-Up Agreement]
EXHIBIT A-1
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as
defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer or director]
[Name and address of officer or director]
A1-3
[Form of Lock-Up Agreement]
EXHIBIT A-2
[CEO’s Letterhead]
TeleTech Holdings, Inc.
Public Offering of Common Stock
Public Offering of Common Stock
March , 2007
Citigroup Global Markets Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement
(the “Underwriting Agreement”), among TeleTech Holdings, Inc., a Delaware corporation (the
“Company”), the Selling Stockholders named in Schedule II thereto and each of you as
representatives of a group of Underwriters named therein, relating to an underwritten public
offering of Common Stock, $0.01 par value (the “Common Stock”), of the Company.
In order to induce you and the other Underwriters to enter into the Underwriting Agreement,
the undersigned will not, without the prior written consent of each of Citigroup Global Markets
Inc. and Xxxxxx Xxxxxxx & Co. Incorporated, offer, sell, contract to sell, pledge or otherwise
dispose of, (or enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition of (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any
person in privity with the undersigned or any affiliate of the undersigned), directly or
indirectly, including the filing (or participation in the filing) of a registration statement with
the Securities and Exchange Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning of Section 16 of
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities
and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the
Company or any securities convertible into or exercisable or exchangeable for such capital stock,
or publicly announce an intention to effect any such transaction, for a period of 120 days after
the date of the Underwriting Agreement, other than:
(i) transfers of shares of Common Stock or Common Stock equivalents:
(a) | as a bona fide gift or gifts; | ||
(b) | to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned; | ||
(c) | as a distribution to partners, members or stockholders of the undersigned, |
A2-1
to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned; | |||
(d) | to any beneficiary of the undersigned pursuant to a will or other testamentary document or applicable laws of descent; or | ||
(e) | to any corporation, partnership, limited liability company or other entity all of the beneficial ownership interests of which are held by the undersigned or immediate family members of the undersigned; |
provided, that (1) the recipient or recipients thereof agree to be bound in writing by the
restrictions set forth herein, (2) any such transfer shall not involve a disposition for
value, and (3) the undersigned is not required to, or does not otherwise, make any public
filing or report regarding such transfers; or
(ii) the surrender of options to purchase shares of Common Stock to satisfy the applicable
aggregate exercise price (and applicable withholding taxes, if applicable, required to be paid) of
options to purchase shares of Common Stock.
If (i) the Company issues an earnings release or material news, or a material event relating
to the Company occurs, during the last 17 days of the lock-up period, or (ii) prior to the
expiration of the lock-up period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the lock-up period, the restrictions imposed
by this agreement shall continue to apply until the expiration of the 18-day period beginning on
the issuance of the earnings release or the occurrence of the material news or material event,
unless each of Citigroup Global Markets Inc. and Xxxxxx Xxxxxxx & Co. Incorporated waives, in
writing, such extension. The undersigned hereby acknowledges that the Company has agreed in the
Underwriting Agreement to provide written notice of any event that would result in an extension of
the Lock-Up Period and agrees that any such notice properly delivered will be deemed to have been
given to, and received by, the undersigned. If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly, | ||
Xxxxxxx X. Xxxxxxx Chief Executive Officer TeleTech Holdings, Inc. 0000 X. Xxxxxx Xxxxxx Xxxxxxxxx, XX 00000 |
A2-2