5,000,000 Shares
1
Common Stock
($0.01 par value)
New York, New York
March 29, 2007
To the
Representatives named
in Schedule I hereto of the
several Underwriters named in
Schedule III hereto
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
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Plus an option
to purchase from the Selling Stockholders, up to 750,000 additional
Securities to cover over-allotments.
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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.
(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 Morgan Stanley & 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 o
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