THIS AGREEMENT is made in Barcelona, on August 31, 2000
BETWEEN
(1) 3i GROUP PLC, a public company formed under the laws of England having its
registered offices at 00 Xxxxxxxx Xxxx, Xxxxxx XX0 0XX (3i);
(2) 3i EUROPARTNERS II LP, a limited partnership formed under the laws of
England having its principal place of business at 00 Xxxxxxxx Xxxx, Xxxxxx XX0
0XX (3i II);
(3) XXXXXXXX, X.X., a limited liability company (SOCIEDAD LIMITADA) formed
under the laws of Spain and having its principal place of business at xxxxx
Xxxxx, 000-000, Xxxxxxxxx (MILLETTI);
(4) XXXXXX XXXX BARTOLOME, of legal age, married, domiciled in Barcelona, at
Xxxxxx x'Xxxxxx 000, 0X, Xxxxxxxxx, and holder of identity card n(0)
37.287.864-B (SR OLLE);
(3i, 3i II, Milletti and Sr Olle, as ultimate sole shareholder of Milletti,
together referred to as the VENDORS and each as a VENDOR); and
(5) TELETECH HOLDINGS, Inc., a listed corporation formed under the laws of
Delaware, USA and having its principal place of business at 0000 Xxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, XX 00000 (TELETECH or the PURCHASER);
WHEREAS
(A) CONTACT CENTER HOLDINGS, S.L., is a limited liability company (SOCIEDAD
LIMITADA) incorporated under the laws of Spain and having its registered office
in Barcelona, at Compte d'Urgell 240, 7D, with Tax Identification Number
B-59586883 (CCH or the COMPANY);
(B) INVERSIONES XXXXXX, X.X., is a limited liability company (SOCIEDAD
LIMITADA) incorporated under the laws of Spain and having its principal place of
business in Barcelona, at Compte d'Urgell 240, 7D, with Tax Identification
Number B-61979167 (HC or the HOLDING COMPANY).
(C) The Holding Company has no interests, liabilities, obligations,
indebtedness or activities other than those deriving from its interest in the
Company.
(D) 3i owns 168 shares of the Company, representing 16.295% of the issued share
capital of the Company and 3i II owns 167 shares of the Company, representing
16.198% of the issued share capital of the Company.
(E) The Holding Company owns 696 shares of the Company, representing 67.507% of
the issued share capital of the Company.
(F) Milletti owns 451,061 shares of the Holding Company representing the entire
share capital of the Holding Company; and in turn the Holding Company owns
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67.507% shares of the Company. The Holding Company, 3i and 3i II together own
100% of the Company's issued share capital.
(G) 3i has agreed to sell 168 shares in the Company and 3i II has agreed to
sell 167 shares in the Company, together representing 32.493% of the issued
share capital of the Company (the COMPANY SHARES) to TeleTech, and TeleTech has
agreed to purchase the Company Shares on the terms and conditions set out in
this Agreement;
(H) Milletti has agreed to sell 451,061 shares, representing in total 100% of
the issued share capital of the Holding Company (the HC SHARES) to TeleTech, and
TeleTech has agreed to purchase the HC Shares on the terms and conditions set
out in this Agreement.
(I) As a result of the purchase by TeleTech of the Company Shares and the HC
Shares under this Agreement, TeleTech will hold, directly or indirectly, the
entire share capital of CCH (i.e. 32.493% directly and the remaining 67.507%
indirectly through the Holding Company).
(J) There are no rights to call for the allotment, conversion, issue, sale or
transfer of any Company Shares or HC Shares or loan capital or any other
security giving rise to a right over the capital of the Company or the Holding
Company under any option or other agreement (including conversion rights and
rights of pre-emption) other than in the bye-laws of the Company.
(K) In consideration of the purchase of the Company Shares and the HC Shares,
TeleTech has agreed to issue and allot shares in TeleTech to the Vendors.
(L) The Vendors have delivered or caused to be delivered to the Purchaser:
(i) Secretary certificates of the general shareholder's resolutions of
the Company, approving the sale and purchase of the Shares and
waiving any right of first refusal and any other pre-emption right,
including option rights;
(ii) satisfactory evidence of the effective transfer by Xxxx Xxxxxxxxx
Xxxx Xxxxxx to the Holding Company of one (1) share numbered 3,006 in
Zigzag and of the effective transfer by Sr Olle to the Company of ten
(10) shares numbered 491 to 500 in DTG;
(iii) the Shareholders Registry Books of each of HC and the Subsidiaries,
except for DTG, duly legalised with up-to-date entries;
(iv) Certificates from the President of each of the Company and DTG
stating that the Company Shares and the DTG Shares respectively are
the only shares that have been issued by the respective company and
that no Security Interest exists in relation to such shares, together
with a copy of the application to the Mercantile Registry for the
legalisation of the Shareholders Registry Book and the Share Registry
Book of the Company and DTG respectively;
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(v) the constitutional deeds of the Companies and the Subsidiaries and
deeds of title to the Shares;
(vi) all financial and accounting books and records of the Companies and
the Subsidiaries and all title deeds to the extent they are not at
such companies' registered addresses;
(vi) written resignations from the following directors of the Companies
and the Subsidiaries signed by each of them to the effect that they
have no claim against the relevant company: Milletti as director of
the Holding Company; the Holding Company, 3i Iberica de Inversiones
Industriales, S.A., Sr Xxxx Xxxx Xxxxxxxxx, Sr Xxxxxx Xxxxxxxxx Aran
and Sr Xxxxx Xxxxxx Busquets as directors of the Company and the
Holding Company, 3i Iberica de Inversiones Industriales, S.A., Sr
Xxxx Xxxx Xxxxxxxxx, Sr Xxxxxx Xxxxxxxxx Aran, Sr Xxxxx Xxxxxx
Busquets, Sr Xxxxxxx Xxxxxxxx Xxxxxx and Sr Xxxxxx Xxxxx Batera as
directors of DTG; and
(vii) a letter from the Vendors stating that the 3i Investment Agreement
and the 3i Option Rights in relation to the shares in CCH have been
terminated.
(M) TeleTech has delivered to the Vendors evidence of the approval by its Board
of the purchase of the Shares.
(N) Milletti has undertaken to Teletech to pay Sr. Olle the purchase price
which amounts to Ptas 10,500 millions for 100% of the issued share capital in
the Holding Company before June 7, 2003 in accordance with the sale and purchase
agreement between Milletti and Sr Olle dated June 7, 2000 and Milleti and Sr
Olle acknowledge that nothing relating thereto will affect the valid transfer of
the HC Shares pursuant to this Agreement;
(O) The lease agreement for the premises located at xxxxx Xxxxx 00, Xxxxxxxxx
between Milletti and DTG has been amended to exclude the right of the lessor
under such lease agreement to increase the rent in the event of a merger of the
lessee; establishing the right of DTG to extend the lease in respect of the
premises located in xxxxx Xxxxx 00 and providing for a rent revision mechanism
to market values in the event of such extension;
(P) Milletti is the legal and beneficial owner of the premises located at xxxxx
Xxxxx 00, and nothing will impede the full registration of Milletti as the sole
registered owner of such property at the relevant land registry;
(Q) TeleTech has entered into this Agreement and based the Purchase Price in
reliance upon the Balance Sheet giving a true and fair view of the financial
position and state of affairs of the Company and the Subsidiaries and on the
basis that Sr Olle shall continue to provide services to the Company as a senior
manager for a minimum period of two (2) years from the date of Completion.
IT IS AGREED as follows:
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INTERPRETATION
1.1 In this Agreement, the following expressions shall have the following
meanings unless the context requires otherwise:
3i GROUP means 3i Group plc and its subsidiaries, any holding company of 3i
Group plc, and any subsidiary of such holding company, from time to time;
3i INVESTMENT AGREEMENT means the investment agreement between Sr Xxxx, Xxxxx
Xxxxx Xxxxxxxxx Xxxxx, 0x, 0xXX and CCH dated November 12, 1998;
3i OPTION RIGHTS means the deed of grant of option between Sr Olle, 3i, 3i II,
Xxxxx Xxxxx Xxxxxxxxx Reche, Inversiones Jonico, S.L. and Milleti dated June 7,
2000;
AFFECTED COMPANY means the company in relation to which a Third Party Claim has
arisen;
BALANCE SHEET means the warranted audited consolidated balance sheet of the
Company and the Subsidiaries as at June 30, 2000, as set out in Schedule 2
hereto;
BALANCE SHEET DATE means June 30, 2000;
BALANCE SHEET REVISION means the revision of the Balance Sheet to be carried out
by TeleTech's Accountants as set out in Clause 6 hereto;
BOARD means board of directors;
BUSINESS DAY means a day (other than Saturday or Sunday) on which banks are open
in Denver and Barcelona for a full range of business;
CLAIM means any claim in respect of a breach of Warranty, a breach of this
Agreement or any of the agreements referred to herein, as well as any claim in
relation to a Contingent Liability;
COMPANIES means the Company and the Holding Company;
COMPLETION means completion of the various matters set out in Clause 4 hereto;
CONSIDERATION SHARES has the meaning given to it in Clause 3.2 hereto;
CONTINGENT LIABILITY means a contingent liability in relation to a Claim to the
extent that:
(i) a notice in writing from a third party, which is reasonable likely to give
rise to a Third Party Claim, is received;
(ii) a fact, matter or circumstance arises or is discovered after Completion
which makes it reasonable to consider that a Claim may arise; or
(iii) any inspection by any taxation, employment, social security authority or
any other administrative or public authority is commenced or notice
received that
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such an inspection in respect of matters prior to Completion is likely to
commence;
DEFICIT means the negative difference between the consolidated net worth of the
Company and the Subsidiaries determined by the Balance Sheet Revision and the
consolidated net worth of the Company and the Subsidiaries as at the Balance
Sheet Date;
DTG means Difusio Telemarketing Grup, S.A., a wholly-owned subsidiary of the
Company;
DTG SHARES means 110,000 shares of PTAs 1,000 each, numbered 1 to 110,000 (both
inclusive), representing the entire issued share capital of DTG;
EMPLOYMENT AGREEMENT means the agreement between the Company and Sr. Olle, in
the form set out in Schedule 5;
ESCROW AGENT means the escrow agent as named in the Escrow Agreement or any
successor thereof;
ESCROW AGREEMENT means the agreement between the Vendors and TeleTech in the
form set out in Schedule 6 hereto;
ESCROW PERIOD means the period commencing on the date of Completion and ending
on October 31, 2001;
ESCROW SHARE VALUE means US$30.63898269 per share of TeleTech Stock as adjusted
for share splits occurring after Completion;
ESCROW SHARES has the meaning given to it in Clause 3.3 hereto;
FINAL DEFICIT means the negative difference between the consolidated net worth
of the Company and the Subsidiaries determined by the Final Special Report and
the consolidated net worth of the Company and the Subsidiaries as at Balance
Sheet Date;
LOSSES means any losses, liabilities, judgments costs, damages or expenses of
any kind or nature whatsoever including, without limitation, legal costs;
NASDAQ NATIONAL MARKET means the National Market tier of the National
Association of Securities Dealers Automatic Quotation System;
PURCHASE PRICE has the meaning given to it in Clause 3.1 hereto;
REGISTRATION RIGHTS AGREEMENT means the agreement to be entered into between
Milletti, 3i, 3i II and TeleTech in the form set out in Schedule 7 hereto;
RELATED PARTY means:
(a) in relation to an individual, any company in which any such person owns
directly or indirectly five (5) per cent. or more of the shares; or
Page 5
(b) in relation to a company:
(i) a member of such company's group;
(ii) a person who is, or was within the preceding twelve (12) months,
entitled to exercise or to control the exercise of ten (10) per cent.
or more of the votes capable of being cast on all or substantially all
matters at general meetings of the company or of any other member of
its group.
RELEVANT CAPACITY means, with respect to any person, for its or his or her own
account or for that of any person, firm or company and whether through the
medium of a company or as principal, partner, director, employee, consultant,
agent, shareholder, beneficiary or otherwise;
REVISED BALANCE SHEET DATE means August 31, 2001;
SECURITY INTEREST means any security interest of any nature whatsoever
including, without limitation, any mortgage, charge, pledge, lien, assignment by
way of security or other encumbrance that limits or restricts the free
transferability of the asset affected;
SHARES means the Company Shares and the HC Shares;
SUBSIDIARIES means DTG, Zig-Zag, UTE Iberphone and UTE Telenet;
TELETECH ACCOUNTANTS means Xxxxxx Xxxxxxxx LLP or any other audit firm of
recognized prestige appointed by TeleTech as notified to the Vendors;
TELETECH GROUP means TeleTech and its subsidiaries;
TELETECH STOCK means the shares of common stock of TeleTech, par value US$.01
per share;
TELETECH'S WARRANTIES means the representations and warranties given by TeleTech
in this Agreement including, without limitation, those set out in Schedule 3;
THIRD PARTY CLAIM means any third party claim against any of the Companies or
Subsidiaries which is reasonably likely to give rise to a Claim, and any claim,
inspection or notice of commencement of inspection by any taxation, employment,
social security authority or any other administrative or public authority in
respect of matters in any way arising prior to Completion which is reasonable
likely to give rise to a Claim;
THIRD PARTY COUNSEL means a legal counsel, independent of the parties, with more
than ten (10) years legal practice, specialised in matters relating to the
subject matter in dispute, and which is acceptable on a reasonable basis to all
the parties;
UTE IBERPHONE means the UTE Iberphone Difusio Telemarketing Grup, a UNION
TEMPORAL DE EMPRESAS incorporated by DTG and Iberphone, S.A. on May 20, 1999;
Page 6
UTE TELENET means the UTE Creaciones Corporativas Multimedia DTG, a UNION
TEMPORAL DE EMPRESAS incorporated by DTG and Creaciones Corporativas Multimedia,
S.L. on January 4, 2000;
VENDORS PROPORTIONS means 67.507% for the benefit of Milletti, 16.295% for the
benefit of 3i and 16.198% for the benefit of 3i II;
VENDORS' WARRANTIES means the representations and warranties given by the
Vendors in this Agrement including, without limitation, those set out in
Schedule 1 hereto;
WARRANTIES means the Vendors' Warranties and TeleTech's Warranties;
ZIGZAG means Zigzag 2000, S.L. a subsidiary of the Company.
1.2 In this Agreement, unless the context otherwise requires:
(a) references to a "COMPANY" shall include a company, corporation or similar
entity, wherever incorporated;
(b) references to "PERSONS" shall include any individual, company, corporate
entity, firm, partnership, association or other body or entity;
(c) the "HEADINGS" are inserted for convenience only and shall not affect the
construction of this Agreement;
(d) references to a statute or statutory provision shall include that statute
or provision as from time to time amended or modified or re-enacted or
consolidated whether before or after the date of this Agreement so far as
such amendment or modification or re-enactment or consolidation applies or
is capable of applying and (so far as liability thereunder may exist or can
arise) shall include also any past statutory provision (as from time to
time modified or re-enacted or consolidated) which such provision has
directly or indirectly replaced;
(e) any reference to a statutory provision include any subordinate legislation
made from time to time under that provision;
(f) any reference to "ACCOUNTS" or to "FINANCIAL STATEMENTS" shall include the
directors' and auditors' reports; relevant balance sheets; profit and loss
accounts; together with all documents which are or would be required by law
to be annexed to the accounts of the company concerned in respect of the
accounting reference period in question; and
(g) any reference to "BOOKS", "RECORDS" or "OTHER INFORMATION" means books,
records or other information in any form including paper, electronically
stored data, magnetic media, film and microfilm;
(h) any references to Clauses and Schedules are to clauses of and schedules to
this Agreement;
Page 7
(i) the singular shall include the plural and vice versa, and one gender shall
include all others;
(j) a "SUBSIDIARY" is, in relation to a "HOLDING UNDERTAKING", any other
undertaking in which the holding undertaking (or persons acting on its or
their behalf) for the time being directly or indirectly holds or controls
either:
(i) a majority or 50 per cent. of the voting rights exercisable at
general meetings of the members of that undertaking on all, or
substantially all, matters; or
(ii) the right to appoint or remove directors having a majority or 50
per cent. of the voting rights exercisable at meetings of the
board of directors of that undertaking on all, or substantially
all, matters;
and any undertaking which is a subsidiary of another undertaking shall also
be a subsidiary or any further undertaking of which that other is a
subsidiary; and
(k) references to DOLLARS or US$ are references to the currency of the United
States of America; and references to PESETAS or PTAs are references to the
currency of the Kingdom of Spain.
SALE AND PURCHASE OF SHARES
2.1 Subject to the terms and conditions of this Agreement the Vendors shall, as
absolute owners, sell to TeleTech, and TeleTech shall purchase from the
respective Vendors, the Shares as follows:
3i Shall sell 168 shares in the Company, representing 16.295% of the
Company's issued share capital, to TeleTech.
3i II Shall sell 167 shares in the Company, representing 16.198% of the
Company's issued share capital, to TeleTech.
Milletti Shall sell 451,061 shares in the Holding Company, representing
100% of the Holding Company's issued share capital, to TeleTech.
2.2 The Shares shall be sold with all rights attaching to them and free from
all Security Interests and from any other third party right, except for the
interest dividend payment in relation to the Company Shares approved on June 30,
2000 for the amount of PTAs 52,569,734 which was paid on July 28, 2000 to 3i and
3i II and on July 31, 2000 to HC.
2.3 The Vendors and the Companies hereby waive all rights of first refusal and
any other pre-emption right including, without limitation, any option rights
which they may have in respect of the sale of the Shares referred to in Clause
2.1 so as to permit their acquisition by TeleTech.
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PURCHASE PRICE AND PAYMENT
3.1 The aggregate purchase price payable for all the Shares (the PURCHASE
PRICE) shall be US$100 million, of which the sum of US$67.507 million
(represented by 2,203,313 shares of TeleTech Stock) shall be allocated to the HC
Shares and the sum of US$32.493 million (represented by 1,060,503 shares of
TeleTech Stock) shall be allocated to the Company Shares.
3.2 The Purchase Price shall be paid by the allotment by TeleTech to Xxxxxxxx,
0x and 3i II of three million two hundred and sixty-three thousand eight hundred
and sixteen (3,263,816) shares of TeleTech Stock which the parties have agreed
have an aggregate value of US$100 million (the CONSIDERATION SHARES).
3.3 The Consideration Shares shall be delivered to Xxxxxxxx, 0x and 3i II as
follows:
(a) 92.24% of the Consideration Shares (being 3,010,544 shares of TeleTech
Stock) shall be delivered to Xxxxxxxx, 0x and 3i II in the Vendors'
Proportions on Completion (being 2,032,336, 490,564 and 487,644 shares of
TeleTech Stock respectively); and
(b) 7.76% of the Consideration Shares (being 253,272 shares of TeleTech Stock)
shall be delivered to the Escrow Agent on Completion (the ESCROW SHARES)
(170,977 shares of TeleTech Stock for the account of Milletti; 41,270
shares of TeleTech Stock for the account of 3i and 41,025 shares of
TeleTech Stock for the account of 3i II) and shall be held by the Escrow
Agent in accordance with the terms of the Escrow Agreement as a general
security for the Balance Sheet, the Vendors' Warranties, the obligations
and undertakings of the Vendors under this Agreement or any agreement
referred to herein. The remaining Escrow Shares, after having withdrawn any
Escrow Shares out of the Escrow Account in accordance with the procedure
set out in Clause 7 and the Escrow Agreement, shall be delivered to
Xxxxxxxx, 0x and 3i II in the Vendors' Proportions in accordance with the
terms of the Escrow Agreement.
COMPLETION
4.1 Immediately after signing of this Agreement, the events set out in the
following provisions of this Clause 4 shall take place.
4.2 The Vendors and TeleTech shall execute for TeleTech's benefit, in the
presence of a Spanish notary public, notarial deed(s) of transfer in respect of
all of the Shares referred to in Clause 2.1.
4.3 The Companies' secretaries shall enter, as soon as practicable, the name of
TeleTech in the relevant Shareholder Registry Books as the holder of the
relevant Shares following the execution of the notarial deed mentioned in Clause
4.2 above.
4.4 General shareholders' meetings of the Companies and the Subsidiaries shall
be held accepting Holding Company, 3i Iberica de Inversiones Industraiales,
S.A., Xx. Xxxx Xxxx Xxxxxxxxx, Xx. Xxxxxx Xxxxxxxxx Aran and Xx. Xxxxx Xxxxxx
Busquets' resignations as directors of the Company; Milletti's resignation as
director of the
Page 9
Holding Company; Holding Company, 3i Iberica de Inversiones Industriales, S.A.,
Xx. Xxxx Xxxx Xxxxxxxxx, Xx. Xxxxxx Xxxxxxxxx Aran, Xx. Xxxxx Xxxxxx Busquets,
Xx. Xxxxxxx X. Xxxxxxxx Xxxxxx and Xx. Xxxxxx Xxxxx Batera's resignations as
directors of DTG; appointing Xx. Xxxxx Xxxxxxx Xxxxxxxx, Xx. Xxxxx Xxxxx Xxxxxxx
and Sr. Olle as new directors of the Company; appointing Xx. Xxxxx Xxxxxxx
Xxxxxxxx, Xx. Xxxxx Xxxxx Xxxxxxx and Sr. Olle as new directors of the Holding
Company and appointing Xx. Xxxxx Xxxxxxx Xxxxxxxx, Xx. Xxxxx Xxxxx Xxxxxxx, Xx.
Olle and Xx. Xxxxxxx X. Xxxxxxxx Xxxxxx as new directors of DTG.
4.5 Board meetings of the Companies (and the Subsidiaries) shall take place to
appoint the chairman and secretary of their respective Boards.
4.6 The following agreements shall be executed by the relevant parties thereto:
(i) the Escrow Agreement in the form set out in Schedule 6;
(ii) the Registration Rights Agreement in the form set out in Schedule 7;
and
(iii) the Employment Agreement and the Stock Option Agreements annexed
thereto in the form set out in Schedule 5.
POST-COMPLETION UNDERTAKINGS
5.1 Each of the Vendors undertakes to TeleTech, in accordance with the
Registration Rights Agreement, not to purchase, sell or otherwise dispose of,
directly or indirectly, (including by way of granting any Security Interest
over) any of the Consideration Shares or any of TeleTeck Stock, or any interest
in them, at any time until TeleTech has notified the Vendors that it has
publicly released, in a quarterly report on Form 10-Q or in a press release for
the applicable fiscal quarter following the date of Completion financial reports
covering, at least, thirty (30) days post-acquisition financial results which
TeleTech anticipates realising on or around October 18, 2000.
5.2 Milletti undertakes to TeleTech that within 12 months from the date of
Completion the Company will sell the mooring held in the Olympic Port in
Barcelona at market value to Sr. Olle.
5.3 TeleTech undertakes to file in accordance with the Registration Rights
Agreement, in a timely fashion, all reports required to be filed pursuant to the
Securities Exchange Act of 1934 in order that the Vendors may re-sell their
Consideration Shares under Rule 144 beginning one year after the date of
Completion.
BALANCE SHEET REVISION
6.1 During the period of twelve (12) months from the date of Completion,
TeleTech may request TeleTech's Accountants to revise the Balance Sheet (the
BALANCE SHEET REVISION). Such Balance Sheet Revision shall be carried out on the
basis of the accounting policies and procedures set out in Schedule 4.
Page 10
6.2 The parties agree that the purpose of the Balance Sheet Revision is to
determine whether, in light of the contingencies, facts, matters, events and
circumstances that have arisen or are discovered between the Balance Sheet Date
and the Revised Balance Sheet Date and which relate to matters prior to the date
of Completion, the consolidated net worth of the Companies and the Subsidiaries
as at the date of Completion is lower than PTAs 1,183,364,000 as derived from
the Balance Sheet. The parties also agree that any Final Deficit determined in
accordance with the procedure set out in this Clause 5 shall reduce the Purchase
Price, and such amount shall be paid back by the Vendors out of the Escrow
Account.
6.3 The conclusion of the Balance Sheet Revision as to the existence and amount
of the Deficit in the consolidated net worth of the Companies and the
Subsidiaries and the grounds thereof must be stated in writing by TeleTech's
Accountants and notified by TeleTech to the Vendors no later than October, 31,
2001 (the FIRST SPECIAL REPORT).
6.4 If the First Special Report states that a Deficit exists but the Vendors do
not agree with such conclusion, the Vendors may, at their expense, retain an
audit firm of recognised prestige, other than TeleTech's Accountants and
PricewaterhouseCoopers, to review the correctness of the conclusions of the
First Special Report in accordance with the policies and procedures set out in
Schedule 4 as applied to the Revised Balance Sheet. The opinion of the audit
firm appointed by the Vendors as to the correct deficit, if any, and the grounds
thereof must be stated in writing and notified by the Vendors to TeleTech not
later than thirty (30) days following the date when notice of the First Special
Report was given to the Vendors (the SECOND SPECIAL REPORT).
6.5 In case of discrepancy between the First Special Report and the Second
Special Report, the Final Deficit will be decided by PricewaterhouseCoopers
(Barcelona Office), or, if PricewaterhouseCoopers (Barcelona Office) does not
accept the request, by an audit firm of recognised prestige jointly appointed by
the two firms having issued the First Special Report and the Second Special
Reports, respectively. The audit firm so appointed shall state its opinion as to
the existence and amount of the deficit (the FINAL SPECIAL REPORT), in
accordance with the policies and procedures set out in Schedule 4 as applied to
the Revised Balance Sheet, as soon as possible. The Final Deficit will be final
and binding upon the parties, provided, however, that the maximum amount for
such deficit will be that set out in the First Special Report and the minimum
amount for such deficit will be that set out in the Second Special Report.
6.6 The Final Deficit shall be:
(a) zero, if TeleTech fails to notify the First Special Report showing the
Deficit to the Vendors before October 31, 2001;
(b) the Deficit if the Vendors fail to notify a Second Special Report showing a
deficit lower than the Deficit to TeleTech within the term available to the
Vendors for serving such notice;
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(c) the Final Deficit subject to a maximum amount equal to the Deficit stated
in the First Special Report and to a minimum amount equal to the deficit
stated in the Second Special Report.
WARRANTIES AND CLAIMS
7.1 The Vendors confirm their understanding that TeleTech has entered into this
Agreement and based the Purchase Price in reliance upon the Vendors' Warranties
being true, correct and accurate;.
7.2(a) 3i and 3iII severally represent and warrant to TeleTech the terms of the
Vendor Warranties contained in Part 1 of Schedule 1.
(b) Milletti and Sr Olle jointly and severally, represent and warrant to
TeleTech the terms of the Vendors' Warranties contained in Part 2 of
Schedule 1.
7.3 Each of the Warranties shall be construed separately and (except as
expressly provided to the contrary) shall not be limited or restricted by
reference to or inference from the terms of any other Warranty or any other term
of this Agreement.
7.4 The rights and remedies of TeleTech in respect of the Vendors' Warranties
shall not be affected by (i) any investigation made into the affairs of the
Companies or their Subsidiaries or any knowledge held or gained of any such
affairs by or on behalf of TeleTech, except for Contingent Liabilities; or (ii)
or otherwise, other than a specific and duly authorised written waiver or
release by TeleTech.
7.5 Each of the Vendors undertakes to notify TeleTech in writing immediately
upon it becoming aware of any circumstance arising after the date of this
Agreement which would cause the Vendors Warranties to be untrue or inaccurate or
misleading in any respect at the time such Warranty was given or made.
7.6 Subject to Clause 7.13, and except for a Claim in respect of paragraph 1.5
or 2.5 of the Vendors' Warranties, TeleTech shall not be entitled to any Escrow
Shares in respect of any Losses, Claim, Third Party Claim, Deficit, Final
Deficit, Warranty or any other claim whatsoever arising from this Agreement,
unless written notice is served on the Vendors within twelve (12) months from
the date of Completion (without prejudice to the period allowed for serving a
Deficit Notice or a Final Deficit Notice).
7.7 Subject to Clause 7.13, and except for a Claim in respect of paragraph 1.5
or 2.5 of the Vendors' Warranties, the Escrow Account shall be the only recourse
of TeleTech in relation to the payment for any breach of this Agreement, Claim,
Third Party Claim, Deficit, Final Deficit, Warranty or any other claim
whatsoever arising from this Agreement.
7.8 TeleTech shall not be entitled to recover any Losses in respect of any
Claim more than once.
7.9 TeleTech shall not be entitled to make any Claim to the Vendors and the
Vendors shall not be entitled to make any Claim unless the aggregate liability
for all
Page 12
Claims exceeds US$500,000.00, the aggrieved party shall be entitled to Claim the
excess of US$500,000.00. However, TeleTech shall be entitled to Claim the excess
of US$100,000.00 to the extent that one Claim arises exceeding US$500,000.00.
7.10 If TeleTech becomes aware of a Third Party Claim for which the Vendors
could be liable under this Agreement after Completion:
(a) TeleTech shall notify the Vendors of the existence of the Third Party Claim
as soon as reasonably practicable, and whether it is TeleTech's intention
that the Affected Company should resist or defend the Third Party Claim;
(b) in respect of all Third Party Claims, TeleTech shall, so far as it is
lawful for it to do so, consult with and take into account the reasonable
representations of the Vendors and keep them reasonably informed in
relation to the conduct of such Third Party Claim subject to such
representations being made reasonably promptly.
7.11 TeleTech shall notify the Vendors in writing of any breach of the Vendor's
Warranties which is reasonably likely to result in TeleTech being entitled to
make a Claim against the Vendors which becomes known to TeleTech after
Completion as soon as reasonably practicable after such breach of the Vendor's
Warranties becomes known to TeleTech.
7.12 TeleTech shall procure that the Companies and Subsidiaries use their
reasonable endeavours (including pursuing claims against any relevant third
party) to mitigate any Loss resulting from any breach of the Vendor's
Warranties.
7.13 None of the limitations on the liabilities of the Vendors contained in the
foregoing provisions of this Clause 7 shall apply to any Claim which arises or
is increased, or to the extent to which it arises or is increased, as a
consequence of, or which is delayed as a result of, fraud, wilful misconduct or
wilful concealment (DOLO), directly or indirectly, by any of the Vendors.
7.14 TeleTech represents and warrants to the Vendors the terms of the TeleTech
Warranties. TeleTech shall not be liable for any Claim except for a Claim in
relation to breach of paragraph 1.3 of the TeleTech Warranties, unless it
receives from the Vendors written notice containing details of the Claim
including the Vendor's estimate of the amount of any such Claim prior to twelve
(12) months from the date of Completion and, TeleTech shall not be liable for
any amount of any Claim (except for a Claim in relation to breach of paragraph
1.3 of the TeleTech Warranties) that exceeds 7.76% of the Purchase Price.
ESCROW MECHANICS
8.1 Without prejudice to Clause 8.4 below and subject to Clause 7.7 above, if
prior to end of the period of twelve months from the date of Completion,
TeleTech, or any other member of the TeleTech Group or any of the Companies, or
any of the Subsidiaries suffers any Losses which any of them may incur in
relation to any Claim, TeleTech shall give written notice to the Escrow Agent
(with a simultaneous copy to the Vendors) setting out the amount due to TeleTech
and the number of Escrow
Page 13
Shares whose aggregate Escrow Share Value is equivalent to such Losses. In the
event the amount of the Losses deriving from a Claim exceeds the aggregate
Escrow Share Value of the Escrow Shares, all of the Escrow Shares, subject to
Clause 7.9, shall be transferred to TeleTech.
8.2 Where TeleTech gives notice to the Escrow Agent giving reasonable details
that an amount is due to TeleTech in respect of a Claim, such amount shall be
paid forthwith to TeleTech by the Escrow Agent before the expiry of ten (10)
days from the receipt by the Escrow Agent of such notice if the Vendors do not,
within such ten (10) day period, notify the Escrow Agent (with a simultaneous
copy to TeleTech) that they bona fide dispute the amount of such Claim and
giving reasonable details of the reason why they dispute such amount or
provision.
8.3 If, at the end of the period of one year from the date of Completion, there
is any dispute between the Parties in respect of a Claim or where the Claim is
in relation to a Contingent Liability, then such number of Escrow Shares whose
aggregate Escrow Share Value is equivalent to the maximum amount in dispute, or
the maximum amount that could reasonably be awarded in respect of such
Contingent Liability, together with the maximum reasonably anticipated costs,
expenses, interest, charges or penalties relating thereto, or where the amount
in dispute or the Contingent Liability exceeds the aggregate Escrow Share Value
of the Escrow Shares, the total number of Escrow Shares, shall be withheld
until:
(a) in relation to a dispute, such dispute is resolved either by
(i) agreement between the Vendors and TeleTech in writing; or
(ii) a final judgement or resolution issued in relation to it by a court or
competent body; or
(b) in the case of a Contingent Liability until either
(i) the Vendors and TeleTech agree that such Contingent Liability has
ceased to be a liability; or
(ii) such Contingent Liability becomes an actual liability giving rise to a
Claim within seven (7) months from the date of the notice of such
Contingent Liability, such notice to be given within the period of
twelve (12) months from the date of Completion, and such Claim is
dealt with in accordance with this Agreement.
8.4 Up until the expiry of the Escrow Period, TeleTech may give to the Escrow
Agent written notice (with a simultaneous copy to the Vendors) setting out (i)
the amount of the Deficit as determined in accordance with Clause 6; (ii) the
number of Escrow Shares whose aggregate Escrow Share Value is equivalent to the
amount of the Deficit and (iii) a copy of the First Special Report (the DEFICIT
NOTICE). Upon receipt by the Escrow Agent of the Deficit Notice, such number of
Escrow Shares as stated in the Deficit Notice shall be withheld in the Escrow
Account and shall not be released or paid until a Final Deficit has been
determined in accordance with Clause 6. In the event the amount of the Deficit
exceeds the aggregate Escrow Share Value
Page 14
of the Escrow Shares still remaining in the Escrow Account, all of the Escrow
Shares shall be withheld. Upon determination of the Final Deficit, the parties
shall give written notice to the Escrow Agent setting out (i) the amount of the
Final Deficit and (ii) the number of Escrow Shares to be transferred to TeleTech
whose aggregate Escrow Share Value is equivalent to the amount of the Final
Deficit (the FINAL DEFICIT NOTICE). In the event the amount of the Final Deficit
exceeds the aggregate Escrow Share Value of the Escrow Shares still remaining in
the Escrow Account, all of the Escrow Shares shall be stated in the Final
Deficit Notice to be transferred to TeleTech. The Escrow Agent shall then
transfer to TeleTech such number of Escrow Shares as are set out in the Final
Deficit Notice.
FURTHER ASSURANCES
9. Each party undertakes with the other that (so far as it is legally able and
permitted to do so) it will do or procure to be done all such further acts and
things, execute or procure the execution of all such other documents and
exercise all voting rights and powers, direct or indirect, available to it in
relation to any person and to the Companies so as to ensure the complete and
punctual fulfilment, observance and performance of the provisions of this
Agreement and generally that full effect is given to the principles set out in
this Agreement.
NON-COMPETITION
10.1 Milletti and Sr Olle jointly and severally undertake to TeleTech that they
will not and they shall procure that none of their Related Parties will, in any
Relevant Capacity during the 3-year period commencing on the date of Completion:
(a) carry on any business, or hold any equity interest in or be otherwise
interested (directly or indirectly) in any other company or business which
competes with the business of any of the Companies, the Subsidiaries,
TeleTech or any subsidiary of Tele-Tech, except to the extent such interest
is a holding of not more than five (5) per cent. of the total issued share
capital of a company listed on a recognised stock exchange and they are not
a member of the board (or equivalent) of such company or any of its
subsidiaries;
(b) canvass or solicit the custom of any person, firm or company who has been,
or is currently, a customer, supplier, or distributor or advisor or a
potential customer, supplier or distributor of any of the Companies, the
Subsidiaries, TeleTech or any subsidiary of Tele-Tech, except for, in
relation to Sr Olle, in respect of business dealings with such persons,
firms or companies in his private business, provided that such business
does not compete or interfere with the business of any of the Companies,
the Subsidiaries, TeleTech or any subsidiary of TeleTech; or
(c) induce or seek to induce any employee of any of the Companies, the
Subsidiaries, TeleTech or any subsidiary of Tele-Tech to, directly or
indirectly, become employed by or render services to, whether as employee,
consultant or otherwise, any of the Vendors or any of their Related
Parties.
Page 15
10.2 Each of 3i and 3i II severally undertake that it will not, during the
one-year period commencing on the date of Completion, use any information or
knowledge relating to any of the Companies or the Subsidiaries and obtained
through its investment in the Company to:
(a) actively canvass or solicit the custom of any person, firm or company who
has been or is currently a customer, supplier, distributor or advisor or a
potential customer, supplier or distributor of any of the Companies, the
Subsidiaries, TeleTech or any subsidiary of TeleTech; or
(b) induce or seek to induce any employee of any of the Companies, the
Subsidiaries, TeleTech or any subsidiary of Tele-Tech to become employed by
or render services to, whether as employee, consultant or otherwise.
SECURITY
11. As a security of the Vendors' obligations and undertakings under this
Agreement, 7.76% of the Consideration Shares shall be held in Escrow by the
Escrow Agent in accordance with this Agreement and the Escrow Agreement.
ENTIRE AGREEMENT
12. This Agreement, including the Schedules, Annexes and any other agreements
between the parties specifically referred to in this Agreement together
constitute the entire agreement and understanding between the parties in
relation to the Company. This Agreement supersedes all previous letters of
intent and heads of terms exchanged and confidentiality agreements between any
of the parties in connection with the transactions referred to in this
Agreement.
VARIATION AND WAIVERS
13.1 No variation of this Agreement (or any document entered into pursuant to
this Agreement) shall be valid unless it is in writing and signed by or on
behalf of each of the parties to this Agreement and no waiver by a party of its
rights under this Agreement shall be valid unless it is in writing and signed by
or on behalf of that party.
13.2 No waiver by a party of a failure by another party to perform any provision
of this Agreement shall operate or be construed as a waiver in respect of any
other failure whether of a like or different character.
ASSIGNMENT
14. The parties shall not be entitled to assign the benefit of any provision of
this Agreement without the prior written consent the other parties, such consent
not to be unreasonable withheld.
Page 16
INVALIDITY
15. If any of the provisions of this Agreement is or becomes invalid, illegal
or unenforceable under the laws of any jurisdiction, the validity, legality or
enforceability of the remaining provisions shall not in any way be affected or
impaired. The parties shall nevertheless negotiate in good faith in order to
agree the terms of a mutually satisfactory provision, achieving as nearly as
possible the same commercial effect, to be substituted for the provision so
found to be void or unenforceable.
ANNOUNCEMENTS
16.1 Subject to Clause 16.2, no public announcement or press release in
connection with the execution or subject matter of this Agreement shall be made
or issued by or on behalf of any party without the prior written approval of the
other parties (such approval not to be unreasonably withheld or delayed).
16.2 If a party has an obligation to make or issue any announcement required by
law or by any stock exchange or by any governmental authority, the relevant
party shall give the other parties every reasonable opportunity to comment on
any such announcement or release before it is made or issued and the approval of
another party shall be required to any specific references therein to that
party, its affairs or to the Company including its management (provided always
that this shall not have the effect of preventing the party making the
announcement or release from complying with its legal or stock exchange
obligations.)
NOTICES
17.1 Any notice required to be given under this Agreement shall be sufficiently
given if delivered personally or if sent by courier with proof of delivery or
facsimile process. Any notice which is sent or despatched in accordance with
this Clause 17 shall be deemed to have been received by the addressee:
(a) if delivered personally, at the time of delivery;
(b) in the case of a notice sent by courier with proof of delivery on the date
stated by the courier as being the date on which the envelope containing
the notice was delivered; and
(c) if sent by facsimile process:
(i) where burofax has been used, on the next following Business Day to the
date expressed in the OK transmission report; and
(ii) where sent on any other basis by facsimile process, on the next
following Business Day to the date expressed on the O.K. transmission
report provided that a further copy of the notice has also been sent
on that next following Business Day and an O.K. transmission report
was also received in relation to it.
Page 17
17.2 The addresses of the parties for the purpose of Clause 17.1 are as follows:
3i GROUP PLC:
3i Group plc with a copy to: 3i Europe plc Sucursal en Espana
00 Xxxxxxxx Xxxx Xxxx xx Xxxxxxx 00, 0-X
Xxxxxx XX0 0XX 00000 Xxxxxx
XX fax: (34)(00) 0000000
fax: (44)(00) 000 0000
3i EUROPARTNERS II LP:
3i Europartners II LP with a copy to: 3i Europe plc Sucursal en Espana
00 Xxxxxxxx Xxxx Xxxx xx Xxxxxxx 00, 0-X
Xxxxxx XX0 0XX 00000 Xxxxxx
XX fax: (34)(00) 0000000
fax: (44)(00) 000 0000
MILLETI, S.L.:
Milleti, S.L.
Xxxxxx x'Xxxxxx, 000, 0Xxxxxxxxx
00000
Xxxxx
XXXXXX XXXX XXXXXXXXX
Xxxxxx Xxxx Xxxxxxxxx
x/x Xxxxxxxx, X.X.
Xxxxxx x'Xxxxxx, 000, 0
Xxxxxxxxx 00000
Xxxxx
TELETECH HOLDINGS, INC.:
TeleTech Holdings, Inc. with a copy to: Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000 0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel Attn: Xxxxxx X. Xxxxx
fax: (1)(000) 0000000 fax: (1)(000) 000 0000
TeleTech Holdings, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
fax: (1)(000) 0000000
or in each case such other address and contact details as the relevant party may
notify to the other parties in writing.
Page 18
COUNTERPARTS
18. This Agreement may be executed in any number of counterparts by the parties
to it on separate counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
COSTS
19. Each of the parties shall bear its own legal and other costs and expenses
arising in connection with the negotiation, preparation and execution of this
Agreement and TeleTech. For the avoidance of doubt, the accounting fees deriving
from the audit of the Company and the Subsidiaries shall be borne by the Company
and the legal fees payable to Uria & Xxxxxxxx and Debevoice & Xxxxxxxx shall be
born by TeleTech not to exceed on aggregate US$150,000.00; the costs of any
professional services engaged to assist the Vendors in relation to the
transaction described in this Agreement, including without limitation, the costs
of UBS Warburg and Warburg Xxxxxx Xxxx (Espana) shall be borne by the Vendors.
Notarial fees shall be borne by TeleTech.
GOVERNING LAW AND JURISDICTION
20.1 This Agreement shall be governed by and construed in accordance with the
laws of Spain.
20.2 The parties shall do everything possible to resolve any dispute amicably.
The parties shall attempt to resolve in good faith any dispute, controversy or
claim arising from the interpretations or performance of this Agreement or any
other agreement entered into pursuant to it including any question as to its
existence, validity or termination, between or among themselves.
20.3 If the parties to a dispute are unable to resolve the dispute by mutual
agreement within ten (10) Business Days from either party serving on the other
written notice of dispute describing briefly the matter in dispute, then a Third
Party Counsel shall be engaged to intermediate between the parties to the
dispute. The Third Party Counsel shall attempt to resolve the dispute and shall
deliver to the parties to the dispute a written decision (the DECISION) within
fifteen (15) Business Days from the date of his appointment.
If, within fifteen (15) Business Days from the receipt of the Decision, none of
the parties to the dispute give notice to the other party or parties that it
disagrees with such Decision or any item thereof, such notice to state the
reasons for the disagreement in reasonable detail (the DISAGREEMENT NOTICE), the
Decision shall be final and binding on the parties for all purposes.
The costs of the Third party Counsel shall be borne by the party whose
submission is rejected by the Third Party Counsel.
20.4 If:
Page 19
(a) any of the parties to the dispute gives a Disagreement Notice within such
fifteen (15) Business Days and, if the parties are unable to reach an
agreement in good faith in respect thereof within five (5) further Business
Days of such Disagreement Notice; or
(b) the parties to the dispute are unable to reach an agreement as to who shall
be appointed Third Party Counsel for the purpose of this clause;
then the dispute shall be referred to and finally resolved and decided by the
courts of the city of Barcelona (Spain).
This Agreement as well as the Schedules to it, have been signed for and on
behalf of the parties, in Barcelona on the date appearing at its commencement:
-----------------------------
3i GROUP PLC
-----------------------------
3i EUROPARTNERS II LP
-----------------------------
XXXXXXXX, X.X.
-----------------------------
XXXXXX XXXX XXXXXXXXX
-----------------------------
TELETECH HOLDINGS, Inc
Page 20
SCHEDULE 1
VENDORS' WARRANTIES
PART 1: 3i AND 3i II WARRANTIES
1.1 3i is a company duly incorporated and 3i II is a limited partnership, each
is validly existing under their respective laws of incorporation or purported
incorporation.
1.2 Each of 3i and 3i II has the legal right and full power and authority to
enter into and perform this Agreement and any other documents to be executed by
any of 3i and 3i II pursuant to or in connection with this Agreement which when
executed will constitute valid and binding obligations on each Vendor, in
accordance with their respective terms.
1.3 The execution and delivery of, and the performance by 3i and 3i II of their
obligations under this Agreement and any other documents to be executed by any
of 3i and 3i II pursuant to or in connection with this Agreement will not result
in a breach of any provision of the bye-laws or other constitutional documents
of 3i or 3i II and the execution of this Agreement and the fulfilment of the
terms contained therein vests TeleTech with the ownership of Company Shares.
1.4 Each of 3i and 3i II represent and warrant that the information contained
in Recitals (D) and (G) to this Agreement is correct.
1.5 All of the Company Shares are fully paid and 3i and 3i II are the legal and
beneficial owners of them free from all Security Interests, options, equities,
claims or other third party rights (including rights of pre-emption), other than
in the bye-laws of the Company, of any nature whatsoever.
1.6 Neither 3i nor 3i II has purchased or sold TeleTech Stock or derivatives
thereof during the period of thirty (30) days prior to the date of Completion.
PART 2: MILLETTI AND OLLE WARRANTIES
2.1 Each of Milletti, the Companies, DTG and ZigZag are companies duly
incorporated and validly existing under their respective laws of incorporation
or purported incorporation.
2.2 Each of Milletti and Sr Olle has the legal right and full power and
authority to enter into and perform this Agreement and any other documents to be
executed by any of Milletti and Sr Olle pursuant to or in connection with this
Agreement which when executed will constitute valid and binding obligations on
each of Milletti and Sr Olle, in accordance with their respective terms.
2.3 The execution and delivery of, and the performance by Milletti and Sr Olle
of their obligations under, this Agreement and any other documents to be
executed by any of Milletti and Sr Olle pursuant to or in connection with this
Agreement will not result in a breach of any provision of the bye-laws or other
constitutional documents
Page 21
of Milletti and the execution of this Agreement and the fulfilment of the terms
contained therein vests TeleTech with the ownership of the HC Shares.
2.4 Milletti and Sr Olle represent and warrant that the information in respect
of the Companies contained in Recitals (A), (B), (C), (E), (F), (H), (I), (J),
(L), (N), (O) and (P) to the Agreement is correct.
2.5 All of the HC Shares are fully paid and Milletti and Sr Olle are the legal
and beneficial owners of them free from all Security Interests, options,
equities, claims or other third party rights (including rights of pre-emption),
other than in the bye-laws of the Company, of any nature whatsoever.
2.6 Neither Milletti nor Sr Olle has purchased or sold TeleTech Stock or
derivatives thereof during the period of thirty (30) days prior to the date of
Completion.
Page 22
SCHEDULE 2
BALANCE SHEET
Page 23
SCHEDULE 3
TELETECH WARRANTIES
1.1 TeleTech has obtained all corporate authorisations and all other applicable
governmental, statutory, regulatory or other consents required to enter into and
perform the obligations deriving from this Agreement, including the purchase of
the Shares and the issuance and allotment of the Consideration Shares ; and
1.2 The Consideration Shares are authorised TeleTech Stock and have been issued
before Completion on behalf of Milletti, 3i and 3i II, fully-paid, and free from
all Security Interests, options, equities, claims or other third party rights
(including rights of pre-emption) of any nature whatsoever.
1.3 The Consideration Shares will be issued by TeleTech free from all Security
Interests, options, equities, claims or third party rights (including rights of
pre-emption) of any nature whatsoever and the issuance of the Consideration
Shares in accordance with this Agreement vests the Vendors with the ownership of
the Consideration Shares.
1.4 The execution and delivery of, and the performance by TeleTech of its
obligations under this Agreement and any other documents to be executed by
TeleTech pursuant to or in connection with this Agreement will not result in a
breach of any provision of the bye-laws or other constitutional documents of
TeleTech.
Page 24
SCHEDULE 4
ACCOUNTING POLICIES AND PROCEDURES
1.1 The Balance Sheet Revision shall take into account not only events prior to
June 30, 2000 but also events that occur or are discovered by TeleTech after
that date affecting entries included or that should have been included in the
Balance Sheet and further provided that the specific provisions contained in
paragraph 1.2 below concerning certain entries of the Balance Sheet will in any
case be applied.
1.2 The Balance Sheet Revision and the determination of any deficit shall be
carried out pursuant to the following principles:
(a) The events that occur or are discovered after June 30, 2000 affecting items
entries included or that should have been reflected under Spanish generally
accepted accounting principles ("Spanish GAAP") in the Balance Sheet shall
cause an adjustment of the Balance Sheet entries affected under the Balance
Sheet Revision even if such events had not occurred or were not known nor
foreseeable at the time of execution of this Agreement nor at the time of
drawing the Balance Sheet but occurred or were known later (prior to or
after the execution of this Agreement), subject to the provisions of the
subparagraphs below in connection with their respective issues.
(b) The policies and practices consistently applied by the Company and its
Subsidiaries in 2000 and previous fiscal years shall be applied insofar as
they conform with Spanish GAAP.
(c) The positive and negative adjustments affecting all the items accounted
under the same first-digit balance sheet account of the Balance Sheet shall
be arithmetically summed, to set off adjustments of opposite sign. Positive
net adjustments in the aggregate of all the items accounted for under the
same first-digit balance sheet account shall be ignored and shall not be
set off against negative adjustments in other balance sheet accounts of a
different first-digit number.
(d) There shall be no upward revaluation of fixed assets.
(e) The balance sheet entries of accounts receivable shall be corrected
according to the payments received; the specific provisions
(collection-risk reserves separately allocated to specific account
receivables) shall apply to cover the non-payment of the corresponding
receivables. The excess of the specific provisions shall be added up in the
generic provision which shall be set off against shortfalls in receivables
in excess of their respective specific provisions.
(f) There shall be no adjustments to the value of assets due to: (i) market
changes, (ii) legal, regulatory or technological developments and (iii)
decisions taken by TeleTech or under its consent.
Page 25
(g) Liabilities (including those which are identified and quantified but have
not become payable or those that are pending a final resolution as to their
existence or amount) arising out of facts, decisions or circumstances prior
to June 30, 2000 identified and quantified in the course of the Balance
Sheet Revision shall be considered to be actual liabilities as at that date
to be accounted for in the Balance Sheet.
(h) Any payment made to TeleTech out of the Escrow Account as a result of a
Claim shall be taken into account.
Page 26
SCHEDULE 5
EMPLOYMENT AGREEMENT
Page 27
SCHEDULE 6
ESCROW AGREEMENT
Page 28
SCHEDULE 7
REGISTRATION RIGHTS AGREEMENT
Page 29
