<PAGE> 1
As filed with the Securities and Exchange Commission on February 19, 1998
Registration No. 333-____________
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SYKES ENTERPRISES, INCORPORATED
(Exact name of registrant as specified in its charter)
Florida 56-1383460
- ----------------------------------- ----------------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
100 North Tampa Street, Suite 3900, Tampa, Florida 33602,
Telephone: (813) 274-1000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
SCOTT J. BENDERT
Sr. Vice President--Finance, Treasurer, and Chief Financial Officer
Sykes Enterprises, Incorporated
100 North Tampa Street, Suite 3900, Tampa, Florida 33602,
Telephone: (813) 274-1000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPY TO:
MARTIN A. TRABER, ESQ.
Foley & Lardner
100 North Tampa Street, Suite 2700, Tampa, Florida 33602,
Telephone: (813) 229-2300
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] _____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share(1) Price Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 290,000 $17.875 $5,183,750 $1,530
============================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating
the registration fee. The proposed maximum offering price per share and the
proposed maximum aggregate offering price are based on the average of the
high and low sale prices on February 12, 1998, of the Registrant's Common
Stock as reported on the Nasdaq National Market.
<PAGE> 2
LEGEND
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE> 3
PROSPECTUS Subject to completion
February 19, 1998
SYKES ENTERPRISES, INCORPORATED
290,000 SHARES
COMMON STOCK, $.01 PAR VALUE
This Prospectus relates to shares of Common Stock of Sykes Enterprises,
Incorporated ("Sykes" or the "Company") which may be offered for sale from time
to time for the account of certain stockholders of the Company (the "Selling
Stockholders"). Shares may be offered until September 25, 1998 [one year after
the date of issuance of the shares subject to this Prospectus] for the account
of the Selling Stockholders. See "The Offering." The Company will not receive
any proceeds from the sale of Common Stock by the Selling Stockholders. The
Company's Common Stock is traded on the Nasdaq National Market under the symbol
"SYKE." On February ___, 1998, the last reported sale price of the Common
Stock was $______ per share.
------------------------
The distribution of shares of Common Stock by the Selling Stockholders may
be effected from time to time in one or more transactions (which may involve
block transactions) in the over-the-counter market, on the Nasdaq National
Market, or on any exchange on which the Common Stock may then be listed in
negotiated transactions, through the writing of options on shares (whether such
options are listed on an options exchange or otherwise), or a combination of
such methods of sale, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices, or at negotiated prices. The
Selling Stockholders may effect such transactions by selling shares to or
through broker-dealers, and such broker-dealers may receive compensation in
the form of underwriting discounts, concessions or commissions from the Selling
Stockholders and/or purchasers of shares for whom they may act as agent (which
compensation may be in excess of customary commissions). The Selling
Stockholders also may pledge shares as collateral for margin accounts and such
shares could be resold pursuant to the terms of such accounts.
All expenses of the registration of the Common Stock covered by this
Prospectus will be borne by the Company pursuant to preexisting agreements,
except that the Company will not pay (i) any Selling Stockholder's underwriting
discounts or selling commissions, (ii) transfer taxes or (iii) fees and
expenses of any Selling Stockholder's counsel exceeding $5,000 in the
aggregate.
SEE "RISK FACTORS" AT PAGE 5 FOR A DISCUSSION OF CERTAIN RISK FACTORS THAT
SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS [FEBRUARY ___], 1998.
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). The reports,
proxy statements and other information filed by the Company with the Commission
may be inspected and copied at the public reference facilities maintained by
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's Regional Offices at the Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and at 7 World Trade
Center, 13th Floor, New York, New York 10048. Copies of such material may also
be obtained from the Public Reference Section of the Commission at Washington,
D.C., at prescribed rates. In addition, the Company's Common Stock is quoted
on the Nasdaq National Market of The Nasdaq Stock Market (the "Nasdaq National
Market") and reports, proxy statements and other information filed by the
Company with the Nasdaq National Market may be inspected at the offices of The
Nasdaq Stock Market, 1735 K Street, N.W., Washington, D.C. 20006-1500.
In addition, the Commission maintains a web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. The address of such
web site is http://www.sec.gov.
This Prospectus does not contain all the information set forth in the
Registration Statement and exhibits thereto which the Company has filed with
the Commission under the Securities Act of 1933, as amended, to which reference
is hereby made.
INCORPORATION OF
CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are hereby incorporated by reference in this
Prospectus:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997;
(3) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 29, 1997;
(4) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 28, 1997;
(5) The Company's Current Report on Form 8-K, dated June 16, 1997
filed October 20, 1997; and
(6) The Company's Current Report on Form 8-K, dated September 26,
1997 filed February 13, 1998.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of this offering shall be deemed to be
incorporated by reference into this Prospectus and shall be deemed to be a part
hereof from the respective dates of filing of such reports and other documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for all
purposes to the extent that a statement contained in this Prospectus or in any
other subsequently filed document that is also incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will furnish without charge to each person to whom this
Prospectus is delivered, upon written or oral request, a copy of any and all
documents incorporated by reference in this Prospectus (other than exhibits to
such documents unless such exhibits are incorporated by reference therein).
Requests for such copies should be directed to Sykes Enterprises, Incorporated,
100 North Tampa Street, Suite 3900, Tampa, Florida 33602, Attention: Scott J.
Bendert, Senior Vice President--Finance, Treasurer, and Chief Financial Officer,
Telephone (813) 274-1000.
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THE OFFERING
Up to 290,000 shares may be offered from time to time for the account
of the Selling Stockholders until September 25, 1998. See "Selling
Stockholders." The Company will not receive any proceeds from the sale of
shares covered by this Prospectus. The Company's Common Stock is traded in the
Nasdaq National Market under the symbol "SYKE."
THE COMPANY
The Company is a leading provider of information technology
outsourcing services throughout North America, Europe, Africa, and The
Philippines. Through its 20 state-of-the-art technical support call centers
("IT call centers"), the Company provides services to leading computer hardware
and software companies by providing technical support services to end users of
their products, and to major companies by providing corporate help desk and
other support services. Through its staff of technical professionals, the
Company also provides software development and related services to large
corporations, on a contract or temporary staffing basis, including software
design, development, integration and implementation; systems support,
maintenance, and documentation; foreign language translation; and software
localization. The integration of these services enables Sykes's customers to
outsource a broad range of their information technology services needs to the
Company. Sykes's customers include Adobe Systems, Apple Computer, Compaq,
Disney, Gateway, Hewlett Packard, IBM, Monsanto, NationsBank, and Tech Data
Corporation ("Tech Data").
In 1993, Sykes began providing technical product support to leading
computer hardware and software companies through the Company's IT call centers.
From two domestic and one European IT call centers at the end of 1994, Sykes
has grown to nine domestic IT call centers and 11 overseas IT call centers as
of December 1997.
All of Sykes's nine domestic IT call centers have been built by the
Company and are modeled after the same prototype, which enables Sykes to
construct new IT call centers rapidly and cost effectively. The Company's
strategy of locating its domestic IT call centers in smaller communities,
typically near a college or university, has enabled it to benefit from a
relatively lower cost structure and a technically proficient, stable work
force. The Company's domestic call centers are located in Colorado, Florida,
Kansas, North Dakota, Oklahoma, and Oregon. Through its IT call centers
located in Sweden, The Netherlands, France, Germany, South Africa, Scotland,
Ireland, and The Philippines, Sykes provides information technology support and
translation services to its multinational customers. The Company also
maintains 20 branch offices located in metropolitan areas of the United States,
Europe, Africa and The Philippines, giving the Company the ability to offer a
broad range of professional services on a local basis, and respond to changing
market demands in each geographical area served. Each branch office is
responsible for staffing the professional personnel needs of customers within
its geographic region and customers referred from other branch offices based on
specialized needs.
During 1997, Sykes increased its services and expanded its customer
base through strategic acquisitions of Telcare Telekommunikations--
Mehrwertdieste mbH of Wilhelmshaven, Germany, on June 16, 1997, TAS
Telemarketing Gesellschaft fur Kommunikation und Dialog mbH of Bochum, Germany
on September 25, 1997, TAS Hedi Fabinyi GmbH of Stuttgart, Germany on September
25, 1997, and McQueen International Limited of Galashiels, Scotland ("McQueen")
on December 31, 1997. With the acquisition of McQueen, Sykes has grown to an
organization of more than 6,400 employees across 40 worldwide locations,
providing IT support services at all stages in the life cycle of their products
and services--from initial development to documentation and training to end-user
support. Sykes also provides diagnostic capabilities and retail software
applications and support for back-office and point-of-sale customers.
Sykes also expanded its services and increased its IT call center
capabilities through strategic alliances. By combining technology acquired in
1996 with technology developed jointly pursuant to its May 1997 alliance with
SystemSoft Corporation, a leading vendor of remote diagnostic tools for
software products, Sykes has introduced electronic technical support center
("ETSC") services that integrate hardware and software diagnostics with call
avoidance capabilities. The Company's ETSC diagnostic tools provide a
comprehensive solution for end users of computer hardware and software
products.
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<PAGE> 6
Through its ETSC services, end users can (i) work with an Sykes call center
agent to expedite problem resolution utilizing communications protocols that
allow for voice and data communications over a single telephone line, (ii)
forward a request for assistance from an Sykes call center agent via the
internet, or (iii) diagnose and solve their technical hardware or software
problems without the assistance of an Sykes call center agent. The Company
believes that its ETSC services will provide it direct access to broader
markets, including post-warranty support services for home and small business
users.
In addition to ETSC services, Sykes expanded its IT call center
utilization capabilities through its July 1997 agreement with Tech Data to
provide technical product support services to customers of Tech Data's network
of 35,000 computer product resellers. Sykes believes that this arrangement
will enable the Company to reach end users of computer hardware and software
products through an established distribution channel.
The Company's growth of its technical staffing, software development
and documentation and software translation services has been additionally
supplemented by Sykes's acquisition in March 1997 of Info Systems of North
Carolina, Inc., a provider of software and support to national high volume
retail chains. Sykes believes that its ability to work in partnership with its
customers during the life cycle of their information technology products and
systems, from software design and systems implementation, through technical
documentation and foreign language translation, to end-user technical product
support, gives it a competitive advantage to become a preferred provider of
outsourced IT services to its customers. In particular, the Company seeks to
broaden its IT outsourcing customer base in the retail, financial services,
healthcare and telecommunications industries.
The Company believes that outsourcing by information technology
companies and companies with information technology needs will continue to grow
as businesses focus on their core competencies rather than nonrevenue producing
activities. Additionally, rapid technological changes, significant capital
requirements for state-of-the-art technology, and the need to integrate and
update complex information technology systems spanning multiple generations of
hardware and software components make it increasingly difficult for businesses
to maintain cost-effective, quality information technology services in-house.
To capitalize on this trend toward outsourcing, the Company has developed a
strategy which includes the following key elements:
. rapidly expand information technology support services revenues
through additional IT call centers in the United States and abroad;
. market the Company's expanded array of services to existing
customers to position Sykes as a preferred vendor of outsourced
information technology support services;
. establish a competitive advantage through the Company's
proprietary, sophisticated technological capabilities; and
. expand its customer base through strategic alliances and selective
acquisitions.
Sykes also expanded its services to the health care industry through
its formation and funding with HealthPlan Services Corporation ("HPS") of Sykes
HealthPlan Services, Inc. ("SHPS") in December 1997. The new company, SHPS, is
owned 50% by Sykes and 50% by HPS. SHPS will provide care management services,
technology solutions, customer services and outsourcing capabilities to the
health care and insurance industries. Through its technology solutions and
call center based operations, SHPS will provide various managed care services
to a large population of users interested in controlling medical loss ratios.
In particular, SHPS will seek to provide utilization, demand, disease, and
disability management to its target markets, which include large self-funded
employers as well as traditional health insurance carriers, HMOs, integrated
provider systems and third party administrators.
The Company believes the majority of its growth is attributable to its
opening of additional IT call centers and the execution of its acquisition
strategy. There can be no assurance, however, that the Company will continue to
experience the same level of success in the opening of additional IT call
centers or that it will be able to find suitable entities which will enable it
to continue the execution of its acquisition strategy.
4
<PAGE> 7
The Company was founded in 1977 in North Carolina and moved its
headquarters to Florida in 1993. In March 1996, the Company changed its state
of incorporation from North Carolina to Florida. Unless the context requires
otherwise, references to "Sykes" or the "Company" means Sykes Enterprises,
Incorporated and its consolidated subsidiaries. The Company's executive
offices are located at 100 North Tampa Street, Suite 3900, Tampa, Florida
33602, and its telephone number is (813) 274-1000.
RISK FACTORS
AN INVESTMENT IN THE SHARES OF COMMON STOCK OFFERED HEREBY INVOLVES A
HIGH DEGREE OF RISK. PROSPECTIVE PURCHASERS SHOULD CAREFULLY CONSIDER THE
FOLLOWING INFORMATION IN ADDITION TO THE OTHER INFORMATION CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN EVALUATING AN INVESTMENT IN THE
COMMON STOCK. CERTAIN MATTERS DISCUSSED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS ARE FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF THE FEDERAL
SECURITIES LAWS. ALTHOUGH THE COMPANY BELIEVES THAT THE EXPECTATIONS REFLECTED
IN SUCH FORWARD-LOOKING STATEMENTS ARE BASED UPON REASONABLE ASSUMPTIONS, THERE
CAN BE NO ASSURANCE THAT ITS EXPECTATIONS WILL BE ACHIEVED. FACTORS THAT COULD
CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THE COMPANY'S CURRENT
EXPECTATIONS INCLUDE THE LOSS OF A SIGNIFICANT CUSTOMER; THE INABILITY OF THE
COMPANY TO MANAGE ITS GROWTH; RISKS ASSOCIATED WITH THE COMPANY'S INTERNATIONAL
OPERATIONS, GENERAL ECONOMIC CONDITIONS, AND THE OTHER RISKS SET FORTH BELOW.
RECENT ACQUISITIONS AND IMPLEMENTATION OF ACQUISITION STRATEGY
During the 12 months ended December 31, 1997, the Company completed
five acquisitions and intends to pursue other acquisitions. There can be no
assurance that it will be able to successfully integrate the operations and
management of recent acquisitions and future acquisitions. Acquisitions
involve significant risks which could have a material adverse effect on the
Company, including: (i) the diversion of management's attention to the
assimilation of the businesses to be acquired; (ii) the risk that the acquired
businesses will fail to maintain the quality of services that the Company has
historically provided; (iii) the need to implement financial and other systems
and add management resources; (iv) the risk that key employees of the acquired
business will leave after the acquisition; (v) potential liabilities of the
acquired business; (vi) unforeseen difficulties in the acquired operations;
(vii) adverse short-term effects on the Company's operating results; (viii) lack
of success in assimilating or integrating the operations of acquired businesses
with those of the Company; (ix) the dilutive effect of the issuance of
additional equity securities; (x) the incurrence of additional debt; and (xi)
the amortization of goodwill and other intangible assets involved in any
acquisitions that are accounted for using the purchase method of accounting.
There can be no assurance that the Company will successfully implement its
acquisition strategy. Furthermore, there can be no assurance any acquisition
will achieve levels of revenue and profitability or otherwise perform as
expected, or be consummated on acceptable terms to enhance shareholder value.
ABILITY TO MANAGE GROWTH
The Company has rapidly expanded its operation since it began
providing information technology support services through its IT call centers
in 1994 and anticipates continued growth to be driven by industry trends toward
outsourcing of such services. The continued growth of the Company's customer
base and expansion of the scope of services offered by it can be expected to
continue to place a significant strain on its resources. These resources could
be further strained from the opening of new IT call centers and the necessity
to successfully attract and retain qualified management personnel to manage the
growth and operations of the Company's business. There can be no assurance
that the Company will have sufficient resources or otherwise be able to
maintain its historic rate of growth or to maintain the quality of its
services.
5
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RAPID TECHNOLOGICAL CHANGE
The market for information technology services is characterized by
rapid technological advances, frequent new product introductions and
enhancements, and changes in customer requirements. The Company's future
success will depend in large part on its ability to service new products,
platforms and rapidly changing technology. These factors will require the
Company to provide adequately trained personnel to address the increasingly
sophisticated, complex and evolving needs of its customers. Its ability to
capitalize on its acquisitions will depend on its ability to (i) continually
enhance software and services and (ii) adapt such software to new hardware and
operating system requirements. Any failure by the Company to anticipate or
respond rapidly to technological advances, new products and enhancements, or
changes in customer requirements could have a material adverse effect on it.
DEPENDENCE ON KEY CUSTOMERS
Revenue from a single customer comprised 13%, 13%, and 11% of the
Company's consolidated revenues for the years ended December 31, 1995, 1996 and
1997, respectively. Two customers comprised 21% and 18% of the Company's
revenues for the years ended December 31, 1996 and 1997, respectively. The
Company's largest ten customers accounted for approximately 44% of the Company's
consolidated revenues in 1997. Generally, the Company's contracts are
cancelable by each customer at any time or on short term notice, and customers
may unilaterally reduce their use of the Company's services under such contracts
without penalty. The Company's loss of (or the failure to retain a significant
amount of business with) any of its key customers could have a material adverse
effect on the Company.
DEPENDENCE ON QUALIFIED PERSONNEL
The Company's business is labor intensive and places significant
importance on its ability to recruit and retain qualified technical and
professional personnel. It generally experiences high turnover of its
personnel and is continuously required to recruit and train replacement
personnel as a result of a changing and expanding work force. Additionally,
demand for qualified professionals conversant with certain technologies is
intense and may outstrip supply as new and additional skills are required to
keep pace with evolving computer technology. There can be no assurance that
the Company will be successful in attracting and retaining the personnel its
requires to conduct its operations successfully. Failure to attract and retain
such personnel could have a material adverse effect on the Company.
RELIANCE ON TECHNOLOGY AND COMPUTER SYSTEMS
The Company has invested significantly in sophisticated and
specialized telecommunications and computer technology, and has focused on the
application of this technology to meet its clients' needs. It anticipates that
it will be necessary to continue to invest in and develop new and enhanced
technology on a timely basis to maintain its competitiveness. Significant
capital expenditures may be required to keep its technology up-to-date.
Investments in technology, including future investments in upgrades and
enhancements to software, may not necessarily maintain the Company's
competitiveness. The Company's future success will also depend in part on its
ability to anticipate and develop information technology solutions which keep
pace with evolving industry standards and changing client demands. In
addition, the Company's business is highly dependent on its computer and
telephone equipment and software systems, and the temporary or permanent loss
of such equipment or systems, through casualty, operating malfunction or
otherwise, could have a material adverse effect on it.
DEPENDENCE ON TREND TOWARD OUTSOURCING
The Company's business and growth depend in large part on the industry
trend toward outsourcing information technology services. There can be no
assurance that this trend will continue, as organizations may elect to perform
such services in-house. A significant change in the direction of this trend
could have a material adverse effect on the Company.
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EMERGENCY INTERRUPTION OF IT CALL CENTER OPERATIONS
The Company's operations are dependent upon its ability to protect its
IT call centers and its information databases against damages that may be
caused by fire, power failure, telecommunications failures, unauthorized
intrusion, computer viruses and other emergencies. The Company has taken
precautions to protect itself and its customers from events that could
interrupt delivery of its services. These precautions include off-site storage
of backup data, fire protection and physical security systems, rerouting of
telephone calls to one or more of its other IT call centers in the event of an
emergency, backup power generators and a disaster recovery plan. The Company
also maintains business interruption insurance in amounts it considers
adequate. Notwithstanding such precautions, there can be no assurance that a
fire, natural disaster, human error, equipment malfunction or inadequacy, or
other event would not result in a prolonged interruption in the Company's
ability to provide support services to its customers. Such an event could have
a material adverse effect on the Company.
INTERNATIONAL OPERATIONS AND EXPANSION
At December 31, 1997, the Company's international operations were
conducted from eleven IT call centers located in Sweden, The Netherlands,
France, Germany, South Africa, Scotland, Ireland, and The Philippines.
Revenues from foreign operations for the years ended December 31, 1996 and
December 31, 1997 were 40.4% and 36.7% of consolidated revenues, respectively.
The Company intends to continue its international expansion. International
operations are subject to certain risks common to international activities,
such as changes in foreign governmental regulations, tariffs and taxes,
import/export license requirements for the Company's software, the imposition
of trade barriers, difficulties in staffing and managing foreign operations,
political uncertainties, longer payment cycles, foreign exchange restrictions
that could limit the repatriation of earnings, possible greater difficulties in
accounts receivable collection, potentially adverse tax consequences, and
economic instability.
The Company conducts business in various foreign currencies and is
therefore subject to the transaction exposures that arise from foreign exchange
rate movements between the dates that foreign currency transactions are
committed and the date that they are consummated. The Company also is subject
to certain exposures arising from the translation and consolidation of the
financial results of its foreign subsidiaries. The Company has from time to
time taken limited actions to attempt to mitigate the Company's foreign
transaction exposure. However, there can be no assurance that actions taken
to manage such exposure will be successful or that future changes in currency
exchange rates will not have a material impact on the Company's future
operating results. The Company does not hedge either its translation risk or
its economic risk.
There can be no assurance that one or more of such factors or other
factors relating to international operations will not have a material adverse
effect on the Company's business, results of operations or financial condition.
COMPETITION
The industry in which the Company competes is extremely competitive
and highly fragmented. While many companies provide information technology
services, the Company believes no one company is dominant. There are numerous
and varied providers of such services, including firms specializing in call
center operations, temporary staffing and personnel placement companies,
general management consulting firms, divisions of large hardware and software
companies and niche providers of information technology services, many of whom
compete in only certain markets. The Company's competitors include many
companies who may possess substantially greater resources, greater name
recognition and a more established customer base than it does. In addition,
the services offered by the Company historically have been provided by in-house
personnel. There can be no assurance that the Company will be able to compete
successfully against existing or potential new competitors as the industry
continues to evolve.
Many of the Company's large customers purchase information technology
services primarily from a limited number of preferred vendors. The Company has
experienced and continues to anticipate significant pricing pressure from these
customers in order to remain a preferred vendor. These companies also require
vendors to be able to provide services in multiple locations. Although the
Company believes it can effectively meet its customers' demands, there can be no
assurance that it will be able to compete effectively with other information
technology services companies.
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RISKS ASSOCIATED WITH SOFTWARE DEVELOPMENT
DEPENDENCE ON NEW PRODUCTS AND ADAPTATION TO TECHNOLOGICAL CHANGE.
The computer software industry is subject to rapid technological change often
evidenced by new competing products and improvements in existing products. The
Company depends on the successful development of new products, including
upgrades of existing products, to replace revenues from products introduced in
prior years that have begun to experience reduced revenues. If the Company's
leading products become outdated and lose market share or if new products or
existing product upgrades are not introduced when planned or do not achieve the
revenues anticipated by the Company, the Company's operating results could be
adversely affected. Even with normal development cycles, the market
environment can change so quickly that features in certain products can become
outdated soon after market introduction. These events may occur in the future
and may have an adverse effect on future revenues and operating results.
COMPETITION. The personal computer market is intensely competitive,
subject to strategic alliances of hardware and software companies and
characterized by rapid changes in technology and frequent introductions of new
products and features. The Company's competitors include developers of
operating systems, applications and utility software vendors and personal
computer manufacturers that develop their own software products. The Company's
current revenues and profitability are dependent on the viability of the
Microsoft Windows and DOS operating systems. The Company expects to encounter
continued competition both from established companies and from new companies
that are now developing, or may develop, competing products. Many of the
Company's existing and potential competitors have financial, marketing and
technological resources significantly greater than those of the Company.
Future competitive product releases may cause disruptions in orders
for the Company's software products while users and the marketplace evaluate
the competitive products. The extent of the disruption in orders and the
impact on future orders of the Company's products will depend on various
factors that are not fully known at this time, including the level of
functionality, performance and features included in the final release of these
competitive products and the market's evaluation of competitive products
compared to the then current functionality, performance and features of the
Company's products.
The Company anticipates that the type and level of competition
experienced to date will continue and may increase and that future sales of its
software products will be dependent upon the Company's ability to timely and
successfully develop or acquire new software products or enhanced versions of
its existing products, and to demonstrate to the user a need for the Company's
products while developers of operating systems and competitive software
products continue to enhance their products. To the extent that operating
system enhancements, competitive products or bundling of competitive products
with operating systems or computer hardware reduce the number of users who
perceive a benefit from the Company's products, sales of the Company's software
products in the future would be adversely impacted.
PRODUCT RETURNS. Like other manufacturers of package software
products, the Company is exposed to the risk of product returns from
distributors and reseller customers. Although the Company believes that it
provides adequate allowances for returns, there can be no assurance that actual
returns in excess of recorded allowances will not result in an adverse effect
on business, operating results and financial condition.
DEPENDENCE ON AND INTENSE COMPETITION FOR KEY PERSONNEL. Recruitment
of personnel in the computer software industry is highly competitive. The
Company's success in this product area depends to a significant extent upon the
performance of its executive officers and other key personnel. The loss of the
services of key individuals could have an adverse effect on the Company. The
Company's future success will depend in part upon its continued ability to
attract and retain highly qualified personnel. There can be no assurance that
the Company will be successful in attracting and retaining such personnel.
PATENTS AND PROPRIETARY INFORMATION. The Company provides its
products to end users under a nonexclusive, nontransferable license. Under the
Company's current form of software license agreement, software is to be used
solely for internal operations on designated computers at specified sites. The
ability of software companies to enforce such licenses has not been finally
determined and there can be no assurance that misappropriation will not occur.
8
<PAGE> 11
The extent to which United States and foreign copyright and patent
laws protect software as well as the enforceability of end user licensing
agreements has not been fully determined. In addition, changes in the
interpretation of copyright and patent laws could expand or reduce the extent
to which the Company or its competitors are able to protect their software and
related intellectual property.
Because the computer industry is characterized by technological
changes, the policing of the unauthorized use of computer software is a
difficult task. Software piracy is expected to continue to be a persistent
problem for the packaged software industry. Despite steps taken by the Company
to protect its software products, third parties still may make unauthorized
copies of the Company's products for their own use or for sale to others.
These concerns are particularly acute in certain international markets. The
Company believes that the knowledge, abilities and experience of its employees,
its timely product enhancements and upgrades and the availability and quality
of its support services provided to users are more significant factors in
protecting its software products than patent, trade secret and copyright
protection laws.
DEPENDENCE ON SENIOR MANAGEMENT
The success of the Company is largely dependent upon the efforts,
direction and guidance of its senior management. Although it has entered into
employment and noncompetition agreements with its executive officers, its
continued growth and success also depends in part on its ability to attract and
retain qualified managers, and on the ability of its executive officers and key
employees to manage its operations successfully. The loss of John H. Sykes,
Chairman of the Board, President and Chief Executive Officer, or the Company's
inability to attract, retain or replace key management personnel in the future,
could have a material adverse effect on it.
CONTROL BY PRINCIPAL SHAREHOLDER; ANTI-TAKEOVER CONSIDERATIONS
As of December 31, 1997, John H. Sykes, the Company's founder and
Chairman of the Board, beneficially owned approximately 47.7% of the Company's
outstanding Common Stock. As a result, Mr. Sykes will be able to elect the
Company's directors and determine the outcome of other matters requiring
shareholder approval. The voting power of Mr. Sykes, together with the
staggered Board of Directors and the anti-takeover effects of certain
provisions contained in both the Florida Business Corporation Act and in the
Company's Articles of Incorporation and Bylaws (including, without limitation,
the ability of the Board of Directors to issue shares of Preferred Stock and to
fix the rights and preferences thereof), may have the effect of delaying,
deferring or preventing an unsolicited change in the control of the Company,
which may adversely affect the market price of the Common Stock or the ability
of shareholders to participate in a transaction in which they might otherwise
receive a premium for their shares.
VOLATILITY OF STOCK PRICE
The Common Stock has experienced significant volatility, as well as a
significant increase in market price, since the Company's initial public
offering in April 1996. The market for securities of technology companies
historically has been more volatile than the market for stocks in general. The
trading of the Common Stock may be subject to wide fluctuations in response to
quarter-to-quarter variations in operating results, announcement of recent
developments or new products by the Company or its competitors and other events
or factors. In addition, the stock market has from time to time experienced
extreme price and volume fluctuations that have particularly affected the
market price for many high technology companies and that often have been
unrelated to the operating performance of these companies. These broad market
fluctuations may adversely affect the market price of the Common Stock.
9
<PAGE> 12
DIVIDEND POLICY
The Company has never declared or paid any cash dividends on its
Common Stock. The Company currently anticipates that all of its earnings will
be retained for development and expansion of the Company's business and does
not anticipate paying any cash dividends in the foreseeable future.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the shares
offered hereby.
DESCRIPTION OF CAPITAL STOCK
COMMON STOCK
The Company's Certificate of Incorporation (the "Certificate")
authorizes 200,000,000 shares of Common Stock, $0.01 par value per share, of
which 39,057,626 shares were issued and outstanding as of December 31, 1997,
and 1,446,411 were subject to issuance to employees and six nonemployee
directors upon exercise of outstanding stock options. Holders of Common Stock
are entitled to one vote per share on all matters to be voted upon by the
stockholders. The holders of Common Stock do not have cumulative voting rights
in the election of directors. The Board of Directors presently consists of
nine members divided into three classes. The directors of the class elected at
each annual meeting of stockholders hold office for a term of three years.
Holders of Common Stock are entitled to receive dividends when, as and if
declared from time to time by the Board of Directors out of funds legally
available therefor, after payment of dividends required to be paid on
outstanding Preferred Stock, if any. In the event of liquidation, dissolution
or winding up of the Company, the holders of Common Stock are entitled to share
ratably in all assets remaining after payment of liabilities subject to prior
distribution rights of any Preferred Stock then outstanding. The Common Stock
has no preemptive or conversion rights and is not subject to further calls or
assessment by the Company. There are no redemption or sinking fund provisions
applicable to the Common Stock. All currently outstanding Common Stock of the
Company is duly authorized, validly issued, fully paid, and nonassessable.
PREFERRED STOCK
The Certificate authorizes 10,000,000 shares of Preferred Stock, $0.01
par value, none of which were outstanding as of December 31, 1997. The Board
of Directors has the authority, without any further vote or action by the
stockholders, to issue Preferred Stock in one or more series and to fix the
number of shares, designations, relative rights (including voting rights),
preferences, and limitations of such series to the full extent now or hereafter
permitted by Florida law. The Company has no present intention to issue
Preferred Stock.
ANTI-TAKEOVER PROVISIONS
Management of the Company currently owns or has the right to acquire
approximately 48.9% of the outstanding Common Stock. The provisions regarding
the division of the Board of Directors into classes and the ability of the
Board of Directors to issue Preferred Stock as described above may make it more
difficult for, and may discourage other persons or companies from making a
tender offer for, or attempting to acquire, substantial amounts of the
Company's Common Stock. This could have the effect of inhibiting changes in
management and may also prevent temporary fluctuations in the market price of
the Company's Common Stock which often result from actual or rumored takeover
attempts.
10
<PAGE> 13
REGISTRAR AND TRANSFER AGENT
The registrar and transfer agent for the Company's Common Stock is
Firstar Trust Company, 615 East Wisconsin Avenue, Fourth Floor, Milwaukee,
Wisconsin 53202.
SHARES ELIGIBLE FOR FUTURE SALE
Sales of substantial amounts of Common Stock in the public market
could adversely affect market prices of the Common Stock and make it more
difficult for the Company to sell equity securities in the future at times and
prices which it deems appropriate.
As of December 31, 1997, 39,057,626 shares of Common Stock were issued
and outstanding, of which 15,615,775 shares will be freely tradeable (assuming
all of the 290,000 shares offered hereby and all of the 375,000 shares offered
for sale by selling shareholders under Registration Statement File No. 333-89513
are sold to nonaffiliates) without restriction or further registration under the
Securities Act. The 23,441,851 remaining shares ("Restricted Shares") may not
be sold except in compliance with the registration requirements of the
Securities Act or pursuant to an exemption from registration such as the
exemption provided by Rule 144 under the Securities Act, and then only in
compliance with the volume and manner of sale limitations of Rule 144.
Approximately 19,236,851 Restricted Shares owned by affiliates and others
currently are eligible for sale under Rule 144. The 4,205,000 remaining
Restricted Shares (assuming all of the 290,000 shares offered hereby and all of
the 375,000 shares offered for sale under Registration Statement No. 333-89513
are sold to nonaffiliates) will be eligible for sale under Rule 144 at various
times throughout the next 12 months. Of these remaining Restricted Shares,
3,540,000 shares are subject to an agreement which grants so-called "demand
registration rights" to the holders which may be exercised at any time after
March 1, 1998, and, if exercised by the holders of at least 400,000 of such
shares, would require the Company to register up to 50% of the shares held by
the shareholders exercising such rights.
In general, under Rule 144 a stockholder (or stockholders whose shares
are aggregated) who has beneficially owned for at least one year shares
privately acquired directly or indirectly from the Company or from an
"affiliate" of the Company, and persons who are affiliates of the Company, are
entitled to sell within any three-month period a number of shares that does not
exceed the greater of 1% of the outstanding shares of the Company's Common
Stock (approximately 390,576 shares at December 31, 1997) or the average weekly
trading volume in the Company's Common Stock in the over-the-counter market
during the four calendar weeks preceding such sale and may only sell such
shares through unsolicited brokers' transactions. A stockholder (or
stockholders whose shares are aggregated) who has not been an affiliate of the
Company for at least 90 days and who has beneficially owned the Restricted
Stock for at least two years is entitled to sell such shares under Rule 144
without regard to the volume and manner of sale limitations described above.
SELLING STOCKHOLDERS
On September 25, 1997, the Company issued 400,000 shares of Common
Stock to the holders of all of the outstanding capital interests ("Quotas") of
TAS Telemarketing Gesellschaft fur Kommunikation und Dialog mbH ("TAS I") of
Bochum, Germany, a limited liability company organized under the laws of the
Federal Republic of Germany, and an operator of information technology call
centers and a provider of technical product support and services to numerous
German industries. The shares were issued in connection with the purchase of
the Quotas by the Company's wholly owned subsidiary, Sykes Enterprises GmbH
("Sykes GmbH"), a limited liability company organized under the laws of the
Federal Republic of Germany, pursuant to an Acquisition Agreement, dated
September 19, 1997, among TAS I Quotasholders, Sykes GmbH, and the Company.
Under the terms of the Registration Rights Agreement, dated September 25, 1997,
entered into among the TAS I Quotasholders and the Company in conjunction with
the consummation of the acquisition, the Company agreed to file a registration
statement under the Securities Act to cover the sale of up to 50% of the shares
issued to the former TAS I Quotasholders, and to keep such registration
statement effective for a period not to exceed the first anniversary date of
issuance of the shares covered by this Prospectus. Accordingly, 200,000 shares
of Common Stock covered by this Prospectus are being offered for sale by the
former TAS I Quotasholders.
11
<PAGE> 14
On September 25, 1997, the Company issued 180,000 shares of Common
Stock to the Quotasholder of TAS Hedi Fabinyi GmbH ("TAS II") of Stuttgart,
Germany, a limited liability company organized under the laws of the Federal
Republic of Germany, and an operator of an information technology call center
and a provider of technical product support and services to numerous German
industries. The shares were issued in connection with the purchase of the
Quotas by the Company's wholly owned subsidiary, Sykes GmbH, pursuant to an
Acquisition Agreement, dated September 25, 1997, among the TAS II Quotasholder,
Sykes GmbH, and the Company. Under the terms of the Registration Rights
Agreement, dated September 25, 1997, entered into among the TAS II Quotasholder
and the Company in conjunction with the consummation of the acquisition, the
Company agreed to file a registration statement under the Securities Act to
cover the sale of up to 50% of the shares issued to the former TAS II
Quotasholder, and to keep such registration statement effective for a period
not to exceed the first anniversary date of issuance of the shares covered by
this Prospectus. Accordingly, 90,000 shares of Common Stock covered by this
Prospectus are being offered for sale by the former TAS II Quotasholder.
The number of shares being offered by the Selling Stockholders are
governed by the preexisting agreements between the Selling Stockholders and the
Company described above. The following table sets forth certain information
with respect to the beneficial ownership of the Company's Common Stock as of
December 31, 1997, and as adjusted to reflect the assumed sale of all of the
shares offered hereby by each Selling Stockholder.
<TABLE>
<CAPTION>
Shares Shares
Beneficially Number Beneficially
Owned Prior of Owned After
to the Offering Shares the Offering (1)
----------------- Being -----------------
Number Percent Offered Number Percent
------ ------- ------- ------ -------
<S> <C> <C> <C> <C> <C>
Bromkamp, Alfons (2)(3) . . . . . . . . . . . . . 348,000 * 174,000 174,000 *
Fabinyi, Hedi (4) . . . . . . . . . . . . . . . . 180,000 * 90,000 90,000 *
Frohlich, Christian (2) . . . . . . . . . . . . 52,000 * 26,000 26,000 *
-------
Total Shares Offered . . . . . . . . . . . . 290,000
=======
</TABLE>
*Less than 1%.
___________________________________________
(1) The named stockholder has sole voting and investment power with respect
to the shares shown as being beneficially owned by it, except as
otherwise indicated.
(2) Former TAS I Quotasholder.
(3) Mr. Bromkamp is employed by the Company as general manager of TAS I, a
wholly owned subsidiary of Sykes GmbH.
(4) Former TAS II Quotasholder. Ms. Fabinyi is employed by the Company as
general manager of TAS II, a wholly owned subsidiary of Sykes GmbH.
PLAN OF DISTRIBUTION
The distribution of the shares of Common Stock by a Selling
Stockholder may be effected from time to time in one or more transactions
(which may involve block transactions) in the over-the-counter market, or on
the NASDAQ National Market System (or any exchange on which the Common Stock
may then be listed) in negotiated transactions, through the writing of options
(whether such options are listed on an options exchange or otherwise), or a
combination of such methods of sale, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. A Selling Stockholder may effect such transactions by selling shares
to or through broker-dealers, and such broker-dealers may receive compensation
in the form of underwriting discounts, concessions or commissions from a
Selling Stockholder and/or purchasers of shares for whom they may act as agent
(which compensation may be in excess of
12
<PAGE> 15
customary commissions). A Selling Stockholder also may pledge shares as
collateral for margin accounts and such shares could be resold pursuant to the
terms of such accounts.
In order to comply with certain state securities laws, if applicable,
the Common Stock will not be sold in a particular state unless such securities
have been registered or qualified for sale in such state or any exemption from
registration or qualification is available and complied with.
The Company will not receive any of the proceeds from the sale of
shares of Common Stock by the Selling Stockholders.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by Foley & Lardner, Tampa, Florida.
EXPERTS
The financial statements incorporated in this Prospectus by reference
from the Company's Annual Report on Form 10-K for the year ended December 31,
1996, and from the Company's Current Reports on Form 8-K dated June 16, 1997
and September 26, 1997, respectively, have been audited by Coopers & Lybrand
L.L.P., independent auditors, as stated in their report, which is incorporated
herein by reference and have been so incorporated in reliance upon such report
given upon the authority of that firm as experts in accounting and auditing.
13
<PAGE> 16
============================================================
NO DEALER, SALESMAN, OR OTHER PERSON HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN SO AUTHORIZED. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY SUCH SECURITIES IN ANY JURISDICTION
TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH AN OFFER
OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO ITS DATE.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information . . . . . . . . . . . . . . 2
Incorporation of Certain Documents
by Reference . . . . . . . . . . . . . . . . . 2
The Offering . . . . . . . . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . . . . . 3
Risk Factors . . . . . . . . . . . . . . . . . . 5
Use of Proceeds . . . . . . . . . . . . . . . . . 10
Description of Capital Stock . . . . . . . . . . 10
Shares Eligible for Future Sale . . . . . . . . . 11
Selling Stockholders . . . . . . . . . . . . . . 11
Plan of Distribution . . . . . . . . . . . . . . 12
Legal Matters . . . . . . . . . . . . . . . . . . 13
Experts . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
==================================================================
SYKES ENTERPRISES, INCORPORATED
290,000 SHARES
COMMON STOCK
--------------
PROSPECTUS
--------------
[February ___, 1998]
====================================================================
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses in connection
with the issuance and distribution of the securities being registered
hereunder. Except for the SEC registration fee, all amounts are estimates.
The Selling Stockholders will pay any transfer and sales taxes on the shares
sold by them in this filing and the fees and expenses of its own counsel.
<TABLE>
<S> <C>
SEC registration fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,530
Accounting fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000*
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,000*
Blue Sky fees and expenses (including counsel fees) . . . . . . . . . . . . . . . . . . . . . . 0*
Printing expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,000*
Transfer agent's and registrar's fees and expenses . . . . . . . . . . . . . . . . . . . . . . 500*
Miscellaneous expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,000*
--------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $24,030*
=======
</TABLE>
*Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Bylaws provide that the Registrant shall indemnify
directors and executive officers to the fullest extent now or hereafter
permitted by the Florida Act.
Section 607.0850 of the Florida Business Corporation Act (the "Florida
Act") sets forth the conditions and limitations governing the indemnification
of officers, directors and other persons.
Reference is made to Article 10 of the Registrant's Bylaws, a copy of
which is incorporated herein by reference as Exhibit 3.2, which provides for
indemnification of officers and directors of the Registrant to the full extent
authorized by the aforesaid section of the Florida Act. Article 10 of the
Bylaws also authorizes the Registrant to purchase and maintain insurance on
behalf of any officer, director, employee, trustee or agent of the Registrant
against any liability asserted against or incurred by them in such capacity or
arising out of their status as such whether or not the Registrant would have
the power to indemnify such officer, director, employee, trustee or agent
against such liability under the provisions of such article or Florida law.
Reference also is made to Article 6 of the Registrant's Articles of
Incorporation, [as amended,] a copy of which is incorporated herein by
reference as Exhibit 3.1, which limits a director's liability in accordance
with the aforesaid section of the Florida Act.
The Registrant has entered into Indemnification Agreements with its
executive officers and directors, a form of which is incorporated herein by
reference as Exhibit 10.1. These Indemnification Agreements provide that the
executive officers and directors will be indemnified to the fullest extent
permitted by law against all expenses (including attorneys' fees), judgments,
fines and amounts paid or incurred by them for settlement in any action or
proceeding, including any derivative action, on account of their service as a
director or officer
II-1
<PAGE> 18
of the Company or of any subsidiary of the Company or of any other company or
enterprise in which they are serving at the request of the Company. No
indemnity will be provided to any director or officer under these agreements on
account of conduct which is finally adjudged to be knowingly fraudulent or
deliberately dishonest or willful misconduct. In addition, no indemnification
will be provided if there is a final adjudication that such indemnification is
not lawful, or in respect of any suit in which judgment is rendered against a
director or officer for an accounting of profits made from a purchase or sale of
securities of the Company in violation of Section 16(b) of the Securities
Exchange Act of 1934, or of any similar statutory law, or on account of any
compensation paid to a director or officer which is adjudicated to have been in
violation of law, and in certain other circumstances.
The agreements bind the Company to provide indemnification to
directors and officers whether or not the Company maintains directors' and
officers' liability insurance coverage and regardless of any future changes in
the Bylaws, although the agreements require the Company to use reasonable
efforts to obtain and maintain such insurance.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"), may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4.1 Registration Rights Agreement, dated September 25, 1997, among Alfons Bromkamp, Christian Frohlich, and
Sykes Enterprises, Incorporated (filed herewith)
4.2 Registration Rights Agreement, dated September 25, 1997, between Hedi Fabinyi and Sykes Enterprises,
Incorporated (filed herewith)
5 Opinion of Foley & Lardner as to the legality of the shares of Common Stock being registered (filed
herewith)
23.1 Consent of Foley & Lardner (contained in its opinion filed herewith as Exhibit 5 and incorporated
herein by reference)
23.2 Consent of Coopers & Lybrand L.L.P. (filed herewith)
24.1 Power of Attorney (found in Part II on Page II-4)
24.2 Certified Resolutions of the Board of Directors authorizing Power of Attorney (filed herewith)
</TABLE>
ITEM 17. UNDERTAKINGS
II-2
<PAGE> 19
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Sections 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Act of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Tampa, and
State of Florida, on this 17th day of February, 1998.
SYKES ENTERPRISES, INCORPORATED
By: /s/ Scott J. Bendert
------------------------------------
Scott J. Bendert
Sr. Vice President--Finance, Treasurer,
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below constitutes and appoints Scott J. Bendert and John L. Crites, Jr., and
each of them individually, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and any and all
Registration Statements filed pursuant to Rule 462(b) under the Securities Act
of 1933, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or either of them, may lawfully do or
cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ John H. Sykes Chairman of the Board, President, Chief February 17, 1998
- ---------------------------------------- Executive Officer and Director (Principal
John H. Sykes Executive Officer)
/s/ Scott J. Bendert Sr. Vice President--Finance, Treasurer, February 17, 1998
- ---------------------------------------- and Chief Financial Officer (Principal
Scott J. Bendert Financial and Accounting Officer)
/s/ Gordon H. Loetz Executive Vice President, Chief Operating February 17, 1998
- ---------------------------------------- Officer and Director
Gordon H. Loetz
/s/ Furman P. Bodenheimer, Jr. Director February 17, 1998
- ----------------------------------------
Furman P. Bodenheimer, Jr.
/s/ John D. Gannett, Jr. Director February 17, 1998
- ----------------------------------------
John D. Gannett, Jr.
/s/ David E. Garner Director February 17, 1998
- ----------------------------------------
David E. Garner
/s/ H. Parks Helms Director February 17, 1998
- ----------------------------------------
H. Parks Helms
/s/ Ernest J. Milani Director February 17, 1998
- ----------------------------------------
Ernest J. Milani
/s/ Adelaide A. Sink Director February 17, 1998
- ----------------------------------------
Adelaide A. Sink
/s/ R. James Stroker Director February 17, 1998
- ----------------------------------------
R. James Stroker
</TABLE>
II-4
<PAGE> 1
EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
September 25, 1997, is entered into by and among SYKES ENTERPRISES,
INCORPORATED, a Florida corporation ("SEi"), and ALFONS BROMKAMP and CHRISTIAN
FROHLICH, each an individual residing in the Federal Republic of Germany
(collectively, the "Sellers").
WHEREAS, this Agreement is made in connection with the sale by the
Sellers of all the outstanding capital interests (the "Company Quotas") of TAS
Telemarketing Gesellschaft fur Kommunikation und Dialog mbH, a limited
liability company organized under the laws of the Federal Republic of Germany
(the "Company"), to Sykes Enterprises GmbH, a limited liability company
organized under the laws of the Federal Republic of Germany and a wholly-owned
subsidiary of SEi (the "Buyer"), pursuant to the Acquisition Agreement dated
September 19, 1997 by and among SEi, the Buyer and the Sellers (the
"Acquisition Agreement");
WHEREAS, in order to induce the Sellers to enter into the Acquisition
Agreement, SEi has agreed to provide the Sellers with the registration rights
set forth in this Agreement; and
WHEREAS, the execution and delivery of this Agreement is a condition
to the sale of the Company Quotas to the Buyer.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
1. DEFINITIONS.
Closing : The closing of the transactions contemplated by the
Acquisition Agreement.
Common Stock : The common stock, par value $.01 per share, of SEi.
Date of Issuance : The Closing Date (as defined in the Acquisition
Agreement).
Holder: A Seller so long as such Seller owns any Registrable
Securities and any of such Seller's respective successors and assigns who
acquire rights in accordance with this Agreement with respect to Registrable
Securities directly or indirectly from such Seller, or from such other
successor and assign, and who agree in writing, in form and substance
satisfactory to SEi, to be bound hereby.
Registration Expenses: Any and all reasonable expenses actually
incurred incident to performance of or compliance with this Agreement other
than underwriting discounts and
<PAGE> 2
commissions and transfer taxes, if any, but including up to $5,000 in the
aggregate of the legal expenses of the Holders incurred with respect to the
registration of Registrable Securities.
Registrable Securities: The shares constituting the Subject Common
Stock; provided, however, that specific shares of the Subject Common Stock
shall not be Registrable Securities if and to the extent that (i) a
Registration Statement with respect to such shares of Subject Common Stock
shall have been declared effective under the Securities Act and such shares of
Subject Common Stock shall have been disposed of in accordance with such
Registration Statement, (ii) such shares of Subject Common Stock shall have
been distributed to the public in accordance with Rule 144 (or any successor
provision) promulgated under the Securities Act, (iii) such shares of Subject
Common Stock shall have been otherwise transferred in accordance with the
provisions of this Agreement and the Acquisition Agreement, and new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by SEi, or (iv) the transfer of such shares of Subject
Common Stock is prohibited by Section 4.28(f) of the Acquisition Agreement.
Registration Statement: Any registration statement of SEi filed with
the SEC which provides for the registration for sale or other transfer of the
Registrable Securities (in whole or in part), including the prospectus included
therein, all amendments and any supplements to such Registration Statement,
including post-effective amendments, all exhibits and all material incorporated
by reference in such Registration Statement.
SEC: The United States Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended from time to
time, or any successor statute, and the rules and regulations of the SEC
thereunder, all as in effect at the time.
Subject Common Stock: The shares of Common Stock issued to the
Sellers pursuant to the Acquisition Agreement and any additional shares of
Common Stock or shares of any other security of SEi issued in respect of such
shares, by way of stock splits, stock dividends, or otherwise.
2. REGISTRATION UNDER THE SECURITIES ACT
(a) REGISTRATION ON DEMAND.
(i) Request for Registration. At any time during the
period beginning on the sixtieth day after the Date of Issuance and ending on
the first anniversary of the Date of Issuance and subject to Sections 2(c) and
2(d), the Holder or Holders of a majority of the Registrable Securities then
outstanding may, by written notice to SEi, require SEi to effect the
registration under the Securities Act of Registrable Securities (a "Demand
Registration").
2
<PAGE> 3
The notice requesting a Demand Registration shall specify the method of
distribution of the Registrable Securities to be covered. Upon receipt of such
notice, SEi will promptly give written notice of such requested registration
(a "Section 2(a) Notice") to any and all other Holders who hold of record any
Registrable Securities and thereupon will file a Registration Statement in form
and scope sufficient to permit, under the Securities Act and any other
applicable law and regulations, the Registrable Securities to be registered in
accordance with the methods of distribution specified in such requests (the
"Demand Registration Statement"). SEi shall use its best efforts to have the
Demand Registration Statement declared effective as promptly as practicable
(but in no event later than 120 days after such request) and to keep the Demand
Registration Statement continuously effective until the first anniversary of
the Date of Issuance or, if shorter, until such time as all the Registrable
Securities covered by the Demand Registration Statement have been sold pursuant
thereto. The Demand Registration Statement shall provide for the registration
under the Securities Act of:
(A) the Registrable Securities which SEi has been
so requested to register by such Holder or Holders, and
(B) all other Registrable Securities which SEi
has been requested to register by any other Holders of Registrable Securities
by written request (specifying the intended method of distribution thereof)
given to SEi within 15 days after the giving of the Section 2(a) Notice.
SEi may on one occasion only postpone filing a Demand Registration Statement
under this Section 2(a) for a reasonable period (not in excess of 90 days) if
in its reasonable judgment such filing would require the disclosure of material
information that SEi has a bona fide business purpose for preserving as
confidential. SEi shall be obligated to effect a Demand Registration pursuant
to this Section 2(a) only once.
(ii) Registration Statement Form. Registrations under
this Section 2(a) shall be on such appropriate registration forms of the SEC as
shall be selected by SEi, be reasonably acceptable to the Holder or Holders who
are the registered holders of at least a majority of the Registrable Securities
to be registered pursuant to this Section 2(a) and permit the disposition of
Registrable Securities in accordance with the intended method or methods of
disposition specified in the requests for registration relating thereto.
(iii) Expenses. SEi shall pay all Registration Expenses in
connection with the registration pursuant to this Section 2(a) and the Holder
or Holders requesting registration pursuant to this Section 2(a) shall pay all
underwriting discounts and commissions, any transfer taxes and any expenses of
counsel for any Holder or Holders not expressly included in Registration
Expenses relating to the sale or disposition of such Holder's Registrable
Securities pursuant to such Registration Statement.
3
<PAGE> 4
(iv) Effective Registration Statement. A registration
requested pursuant to Section 2(a) hereof will not be deemed to have been
effected unless it has been declared effective by the SEC and not less than
eighty-five percent (85%) of the Registrable Securities covered thereby are
sold in accordance with the terms and conditions set forth therein; provided,
however, that if, after it has been declared effective, the offering of
Registrable Securities pursuant to such registration is interfered with by a
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such registration will be deemed not to have
become effective or to have been effected.
(v) Selection of Underwriter. If any of the Registrable
Securities covered by the Demand Registration are to be sold in an underwritten
offering, SEi shall select the underwriter or underwriters in its sole
discretion. SEi and the Holders will take all reasonable steps to cooperate
with the underwriter or underwriters so selected to conduct the offering in a
manner customary for such underwritten offering, including without limitation
entering into an underwriting agreement with such underwriters.
(vi) Registration Not Required. Notwithstanding the other
provisions of Section 2(a), SEi shall not be required to effect a Demand
Registration under this Section 2(a):
(A) after SEi has delivered notice of a Piggyback
Registration pursuant to Section 2(b) and for so long as such Piggyback
Registration is pending;
(B) for Registrable Securities owned by any
Holder that did not, by delivering the requisite notice, exercise its right to
register such Registrable Securities in a Piggyback Registration when so
offered by SEi under Section 2(b); or
(C) if the Demand Registration covers Registrable
Securities with an aggregate market value of less than $250,000 or which
represent less than a majority of the Registrable Securities then outstanding.
(b) PIGGYBACK REGISTRATIONS.
(i) Right to Piggyback. Subject to Sections 2(c) and
2(d) hereof, if at any time prior to the first anniversary of the Date of
Issuance SEi proposes to file a Registration Statement under the Securities Act
with respect to any offering of the Common Stock by SEi for its own account
and/or on behalf of any of its security holders (other than (i) a registration
on Form S-8 or S-4 or any successor form, (ii) a registration relating to a
transaction subject to Rule 145 under the Securities Act, or (iii) any
registration of securities as it relates to an offering and sale to management
of SEi pursuant to any employee stock plan or other employee benefit plan
arrangement) then, as soon as practicable (but in no event less than twenty
(20) days prior to the proposed date of filing such Registration Statement),
SEi shall give written notice of such proposed filing to the Holders, and such
notice shall offer the Holders the opportunity to register such number of
Registrable Securities as the Holders may request (a "Piggyback Registration").
4
<PAGE> 5
Subject to subsection 2(d), SEi shall include in such Registration Statement
all Registrable Securities requested within fifteen (15) days after the receipt
of any such notice (which request shall specify the Registrable Securities
intended to be disposed of by the Holders to be included in the registration
for such offering pursuant to a Piggyback Registration), provided, however,
that if, at any time after giving written notice of its intention to register
Common Stock and prior to the effective date of the Registration Statement
filed in connection with such registration, SEi shall determine for any reason
not to register or to delay registration of the Common Stock to be registered
for sale by SEi, SEi may, at its election, give written notice of such
determination to the Holder of Registrable Securities and, thereupon, (i) in
the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any Registrable
Securities, for the same period as the delay in registering such Common Stock.
(ii) Piggyback Expenses. The Registration Expenses of the
Holders of Registrable Securities will be paid by SEi in a Piggyback
Registration. Underwriting discounts and commissions and transfer taxes, if
any, incurred with respect to the Registrable Securities shall be borne by the
Sellers.
(c) UNDERWRITER'S CUTBACK. Notwithstanding Sections 2(a) and
2(b), if a Demand Registration or a Piggyback Registration is an underwritten
offering being made on behalf of SEi, and the managing underwriter or
underwriters advise SEi in writing that in their opinion the number of shares
of Common Stock requested to be included in such registration exceeds the
number which can be sold in such offering or would be reasonably likely to
adversely affect the price or distribution of the Common Stock offered in such
offering or the timing thereof, then the shares of Common Stock to be included
in such registration shall be the number of shares of Common Stock, adjusted on
a pro rata basis, that, in the opinion of such underwriter or underwriters, can
be sold without an adverse effect on the price, timing or distribution of the
Common Stock to be included. In an underwritten demand registration, the
number of shares to be sold by SEi or other selling shareholders shall be
reduced in accordance with such opinion and, if necessary, eliminated, before
there shall be any reduction in the number of shares to be sold by Holders.
(d) REGISTRATION NOT REQUIRED. Notwithstanding Sections 2(a) and
2(b), in the event the Holder or Holders request that any of the Registrable
Securities covered by this Agreement be sold in an underwritten offering or
otherwise request registration pursuant to this Agreement, SEi shall not be
required to take the action required or contemplated herein to accommodate or
permit such underwritten offering or other registration of the shares subject
to the request if SEi has provided to the requesting Holders an unqualified
opinion of counsel knowledgeable in Securities Act matters to the effect that
all of such Registrable Securities may immediately be sold by such Holders in a
brokered transaction under Rule 144 during any ninety (90) day period without
registration under the Securities Act and applicable state securities laws.
5
<PAGE> 6
3. HOLD-BACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY THE HOLDERS. In the event
Registrable Securities are covered by a Registration Statement filed pursuant
to Section 2 of this Agreement, the Holders agree not to effect any public sale
or distribution of Common Stock, including a sale pursuant to Rule 144 under
the Securities Act, during the 15-day period prior to, and during the 90-day
period beginning on, the effective date of such Registration Statement (except
pursuant to such Registration Statement), if, and then only to the extent, so
requested in writing by SEi, in the case of a non-underwritten public
offering, or by the managing underwriter or underwriters, in the case of an
underwritten offering.
(b) RESTRICTIONS ON PUBLIC SECURITY SALE BY SEI. SEi agrees not
to make any filing to register and agrees not to effect or offer to effect any
public sale or distribution of or purchase any security (other than any such
sale or distribution of such Common Stock in connection with any transaction
subject to Rule 145 under the Securities Act or in connection with offers and
sales to employees under employee benefit plans) during the 15-day period prior
to, and during the 90-day period beginning on, the effective date of any
Registration Statement filed pursuant to Section 2(a) hereof.
4. REGISTRATION PROCEDURES. In connection with SEi's obligations under
Section 2 hereof, SEi shall use it best efforts to effect or cause to be
effected the registration of the Registrable Securities under the Securities
Act to permit offers and sales in accordance with the intended method or
methods of distribution thereof. SEi may require the Holders to use their best
efforts to furnish to SEi such information regarding the distribution of the
Registrable Securities as SEi may from time to time reasonably request in
writing. SEi agrees to obtain customary services and materials from its
counsel and accountants and to perform all requirements in connection with any
offering required by Section 2, including without limitation such customary
opinions of counsel and "cold comfort" letters from independent certified
public accountants as are reasonably requested by any underwriters. SEi
further agrees to (i) furnish Holders for whom shares are registered such
number of copies of a prospectus and preliminary prospectus, if applicable, as
such Holders may reasonably request; (ii) enter into customary agreements,
including an underwriting agreement (which shall include the indemnification
and contribution provisions under Section 5 or similar provisions), and to make
customary representations to any underwriters with respect to the registration
statement; (iii) make available to any underwriters its offices and records as
reasonably requested for the purpose of allowing the underwriters to conduct a
customary "due diligence" investigation; and (iv) list the shares registered on
such Holder's or Holders' behalf on the exchange or quotation system on which
the SEi Common Stock is at the time listed.
6
<PAGE> 7
5. INDEMNIFICATION.
(a) SEi agrees to indemnify, to the extent permitted by law, each
Holder of Registrable Securities and (as applicable) its officers and directors
and each person or entity who controls such Holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, (in the case of a prospectus, always in
light of the circumstances under which the statements are made) except insofar
as the same are caused by or contained in any information furnished in writing
to SEi by such Holder or its affiliate expressly for use therein or by such
Holder's failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto after SEi has furnished such Holder
with a sufficient number of copies of the same. In connection with an
underwritten offering, SEi will indemnify such underwriters, their officers and
directors and each person or entity who controls such underwriters (within the
meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the Holders of Registrable Securities.
(b) In connection with any registration statement in which a
Holder of Registrable Securities is participating, each such Holder will
furnish to SEi in writing such information and affidavits as SEi reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify SEi, its
directors and officers and each person or entity and entity who controls SEi
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, (in the case of a
prospectus, always in light of the circumstances under which the statements are
made) but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such
Holder or its affiliate; provided that the obligation to indemnify will be
several, not joint and several, among such Holders of Registrable Securities
and the liability of each such Holder of Registrable Securities in the event
that more than one Holder is liable will be in proportion to and limited to the
net amount received by such Holder from the sale of Registrable Securities
pursuant to such registration statement.
(c) Any person or entity entitled to indemnification hereunder
will (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification; provided, however, that failure to
give such notice will not prejudice such person's or entity's right to
indemnification from the indemnifying party, except as to any losses suffered
by such person or entity which are attributable to such person's or entity's
failure to promptly give such notice to such indemnifying party and (ii) unless
in such indemnified party's
7
<PAGE> 8
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. The indemnifying party will not be
subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
or entity of such indemnified party and will survive the transfer of securities
and the termination of this Agreement. SEi also agrees to make such provisions
as are reasonably requested by any indemnified party for contribution to such
party in the event SEi's indemnification is unavailable or unenforceable for
any reason.
6. REGULATION S OFFERING. The Sellers agree that none of the Registrable
Securities will be offered for sale pursuant to Regulation S (as promulgated by
the SEC) without the prior written consent of SEi.
7. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. SEi has not entered into and will
not on or after the date of this Agreement enter into any agreement with
respect to the Common Stock which is inconsistent with the rights granted in
this Agreement to the Sellers or which otherwise conflicts with the provisions
hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless (i) SEi has obtained the written consent of the
Holders to such amendment, modification, or supplement or (ii) SEi has obtained
from each Holder a waiver or consent to such departure.
(c) NOTICES. All notices, requests, demands and other
communications (collectively, "Notices") that are required or may be given
under this Agreement shall be in writing. All Notices shall be deemed to have
been duly given or made: if by hand, immediately upon delivery; if by
telecopier or similar device, immediately upon sending, provided notice is sent
on a business day during the hours of 9:00 a.m. and 6:00 p.m. at the location
of the party receiving the Notice, but if not, then immediately upon the
beginning of the first business day after being sent; if by FedEx, Express Mail
or any other reputable overnight delivery service, three business days after
being placed in the exclusive custody and control of said courier; and if
mailed by
8
<PAGE> 9
certified mail, return receipt requested, ten business days after mailing.
Notwithstanding the foregoing, with respect to any Notice given or made by
telecopier or similar device, such Notice shall not be effective unless and
until (i) the telecopier or similar advice being used prints a written
confirmation of the successful completion of such communication by the party
sending the Notice, and (ii) a copy of such Notice is deposited in first class
mail to the appropriate address for the party to whom the Notice is sent. In
addition, notwithstanding the foregoing, a Notice of a change of address by
a party hereto shall not be effective until received by the party to whom such
Notice of a change of address is sent. All Notices are to be given or made to
the parties at the following addresses (or to such other address as either
party may designate by Notice in accordance with the provisions of this
Section):
(i) if to the Holders, at the address set forth in the
Acquisition Agreement, or at the most current address given by the Holders to
SEi by means of a notice given in accordance with the provisions of this
Section 7(c).
(ii) if to SEi, at the address set forth in the
Acquisition Agreement, or at the most current address given by SEi to the
Sellers by means of a notice given in accordance with the provisions of this
Section 7(c).
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida.
(g) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(h) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective permitted successors and assigns of the parties
hereto whether so expressed or not. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or other permitted Holders of Registrable Securities are
also for the benefit of, and enforceable by, any subsequent permitted Holder of
Registrable Securities. The registration rights of the Holders under this
Agreement may be transferred to any transferee who lawfully acquires at least
fifteen thousand (15,000) shares of the Registrable Securities; provided,
9
<PAGE> 10
however, that SEi is given written notice by the Holder at the time of such
transfer stating the name and address of the transferee and identifying the
securities with respect to which the rights under this Agreement are being
assigned; and provided further, that such transferee is a person who is
reasonably satisfactory to SEi and executes an agreement in writing agreeing to
be bound by the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SYKES ENTERPRISES, INCORPORATED
By: /s/ Scott J. Bendert
----------------------------------
Scott J. Bendert,
Vice President - Finance
SELLERS:
/s/ Alfons Bromkamp
-------------------------------------
Alfons Bromkamp
/s/ Christian Frohlich
-------------------------------------
Christian Frohlich
10
<PAGE> 1
EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
September 25, 1997, is entered into by and among SYKES ENTERPRISES,
INCORPORATED, a Florida corporation ("SEi"), and HEDI FABINYI, an individual
residing in the Federal Republic of Germany (the "Seller").
WHEREAS, this Agreement is made in connection with the sale by the
Seller of all the outstanding capital interests (the "Quotas") of TAS Hedi
Fabinyi GmbH Telemarketing und Kommunikationskonzepte, a limited liability
company organized under the laws of the Federal Republic of Germany (the
"Company"), to Sykes Enterprises GmbH, a limited liability company organized
under the laws of the Federal Republic of Germany and a wholly-owned subsidiary
of SEi (the "Buyer"), pursuant to the Acquisition Agreement dated September 25,
1997 by and among SEi, the Buyer and the Seller (the "Acquisition Agreement");
WHEREAS, in order to induce the Seller to enter into the Acquisition
Agreement, SEi has agreed to provide the Seller with the registration rights
set forth in this Agreement; and
WHEREAS, the execution and delivery of this Agreement is a condition
to the sale of the Quotas to the Buyer.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
1. DEFINITIONS.
Closing: The closing of the transactions contemplated by the
Acquisition Agreement.
Common Stock: The common stock, par value $.01 per share, of SEi.
Date of Issuance: The Closing Date (as defined in the Acquisition
Agreement).
Holder: The Seller so long as the Seller owns any Registrable
Securities and any of the Seller's respective successors and assigns who
acquire rights in accordance with this Agreement with respect to Registrable
Securities directly or indirectly from the Seller, or from such other successor
and assign, and who agree in writing, in form and substance satisfactory to
SEi, to be bound hereby.
Registration Expenses: Any and all reasonable expenses actually
incurred incident to performance of or compliance with this Agreement other
than underwriting discounts and
<PAGE> 2
commissions and transfer taxes, if any, but including up to $5,000 in the
aggregate of the legal expenses of the Holders incurred with respect to the
registration of Registrable Securities.
Registrable Securities: The shares constituting the Subject Common
Stock; provided, however, that specific shares of the Subject Common Stock
shall not be Registrable Securities if and to the extent that (i) a
Registration Statement with respect to such shares of Subject Common Stock
shall have been declared effective under the Securities Act and such shares of
Subject Common Stock shall have been disposed of in accordance with such
Registration Statement, (ii) such shares of Subject Common Stock shall have
been distributed to the public in accordance with Rule 144 (or any successor
provision) promulgated under the Securities Act, (iii) such shares of Subject
Common Stock shall have been otherwise transferred in accordance with the
provisions of this Agreement and the Acquisition Agreement, and new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by SEi, or (iv) the transfer of such shares of Subject
Common Stock is prohibited by Section 4.28(f) of the Acquisition Agreement.
Registration Statement: Any registration statement of SEi filed with
the SEC which provides for the registration for sale or other transfer of the
Registrable Securities (in whole or in part), including the prospectus included
therein, all amendments and any supplements to such Registration Statement,
including post-effective amendments, all exhibits and all material incorporated
by reference in such Registration Statement.
SEC: The United States Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended from time to
time, or any successor statute, and the rules and regulations of the SEC
thereunder, all as in effect at the time.
Subject Common Stock: The shares of Common Stock issued to the Seller
pursuant to the Acquisition Agreement and any additional shares of Common Stock
or shares of any other security of SEi issued in respect of such shares, by way
of stock splits, stock dividends, or otherwise.
2. REGISTRATION UNDER THE SECURITIES ACT
(a) REGISTRATION ON DEMAND.
(i) Request for Registration. At any time during the
period beginning on the sixtieth day after the Date of Issuance and ending on
the first anniversary of the Date of Issuance and subject to Sections 2(c) and
2(d), the Holder or Holders of a majority of the Registrable Securities then
outstanding may, by written notice to SEi, require SEi to effect the
registration under the Securities Act of Registrable Securities (a "Demand
Registration").
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<PAGE> 3
The notice requesting a Demand Registration shall specify the method of
distribution of the Registrable Securities to be covered. Upon receipt of such
notice, SEi will promptly give written notice of such requested registration
(a "Section 2(a) Notice") to any and all other Holders who hold of record any
Registrable Securities and thereupon will file a Registration Statement in form
and scope sufficient to permit, under the Securities Act and any other
applicable law and regulations, the Registrable Securities to be registered in
accordance with the methods of distribution specified in such requests (the
"Demand Registration Statement"). SEi shall use its best efforts to have the
Demand Registration Statement declared effective as promptly as practicable
(but in no event later than 120 days after such request) and to keep the Demand
Registration Statement continuously effective until the first anniversary of
the Date of Issuance or, if shorter, until such time as all the Registrable
Securities covered by the Demand Registration Statement have been sold pursuant
thereto. The Demand Registration Statement shall provide for the registration
under the Securities Act of:
(A) the Registrable Securities which SEi has been
so requested to register by such Holder or Holders, and
(B) all other Registrable Securities which SEi
has been requested to register by any other Holders of Registrable Securities
by written request (specifying the intended method of distribution thereof)
given to SEi within 15 days after the giving of the Section 2(a) Notice.
SEi may on one occasion only postpone filing a Demand Registration Statement
under this Section 2(a) for a reasonable period (not in excess of 90 days) if
in its reasonable judgment such filing would require the disclosure of material
information that SEi has a bona fide business purpose for preserving as
confidential. SEi shall be obligated to effect a Demand Registration pursuant
to this Section 2(a) only once.
(ii) Registration Statement Form. Registrations under
this Section 2(a) shall be on such appropriate registration forms of the SEC as
shall be selected by SEi, be reasonably acceptable to the Holder or Holders who
are the registered holders of at least a majority of the Registrable Securities
to be registered pursuant to this Section 2(a) and permit the disposition of
Registrable Securities in accordance with the intended method or methods of
disposition specified in the requests for registration relating thereto.
(iii) Expenses. SEi shall pay all Registration Expenses in
connection with the registration pursuant to this Section 2(a) and the Holder
or Holders requesting registration pursuant to this Section 2(a) shall pay all
underwriting discounts and commissions, any transfer taxes and any expenses of
counsel for any Holder or Holders not expressly included in Registration
Expenses relating to the sale or disposition of such Holder's Registrable
Securities pursuant to such Registration Statement.
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<PAGE> 4
(iv) Effective Registration Statement. A registration
requested pursuant to Section 2(a) hereof will not be deemed to have been
effected unless it has been declared effective by the SEC and not less than
eighty-five percent (85%) of the Registrable Securities covered thereby are
sold in accordance with the terms and conditions set forth therein; provided,
however, that if, after it has been declared effective, the offering of
Registrable Securities pursuant to such registration is interfered with by a
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such registration will be deemed not to have
become effective or to have been effected.
(v) Selection of Underwriter. If any of the Registrable
Securities covered by the Demand Registration are to be sold in an underwritten
offering, SEi shall select the underwriter or underwriters in its sole
discretion. SEi and the Holders will take all reasonable steps to cooperate
with the underwriter or underwriters so selected to conduct the offering in a
manner customary for such underwritten offering, including without limitation
entering into an underwriting agreement with such underwriters.
(vi) Registration Not Required. Notwithstanding the other
provisions of Section 2(a), SEi shall not be required to effect a Demand
Registration under this Section 2(a):
(A) after SEi has delivered notice of a Piggyback
Registration pursuant to Section 2(b) and for so long as such Piggyback
Registration is pending;
(B) for Registrable Securities owned by any
Holder that did not, by delivering the requisite notice, exercise its right to
register such Registrable Securities in a Piggyback Registration when so
offered by SEi under Section 2(b); or
(C) if the Demand Registration covers Registrable
Securities with an aggregate market value of less than $250,000 or which
represent less than a majority of the Registrable Securities then outstanding.
(b) PIGGYBACK REGISTRATIONS.
(i) Right to Piggyback. Subject to Sections 2(c) and
2(d) hereof, if at any time prior to the first anniversary of the Date of
Issuance SEi proposes to file a Registration Statement under the Securities Act
with respect to any offering of the Common Stock by SEi for its own account
and/or on behalf of any of its security holders (other than (i) a registration
on Form S-8 or S-4 or any successor form, (ii) a registration relating to a
transaction subject to Rule 145 under the Securities Act, or (iii) any
registration of securities as it relates to an offering and sale to management
of SEi pursuant to any employee stock plan or other employee benefit plan
arrangement) then, as soon as practicable (but in no event less than twenty
(20) days prior to the proposed date of filing such Registration Statement),
SEi shall give written notice of such proposed filing to the Holders, and such
notice shall offer the Holders the opportunity to register such number of
Registrable Securities as the Holders may request (a "Piggyback Registration").
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<PAGE> 5
Subject to subsection 2(d), SEi shall include in such Registration Statement
all Registrable Securities requested within fifteen (15) days after the
receipt of any such notice (which request shall specify the Registrable
Securities intended to be disposed of by the Holders to be included in the
registration for such offering pursuant to a Piggyback Registration), provided,
however, that if, at any time after giving written notice of its intention to
register Common Stock and prior to the effective date of the Registration
Statement filed in connection with such registration, SEi shall determine for
any reason not to register or to delay registration of the Common Stock to be
registered for sale by SEi, SEi may, at its election, give written notice of
such determination to the Holder of Registrable Securities and, thereupon, (i)
in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any Registrable
Securities, for the same period as the delay in registering such Common Stock.
(ii) Piggyback Expenses. The Registration Expenses of the
Holders of Registrable Securities will be paid by SEi in a Piggyback
Registration. Underwriting discounts and commissions and transfer taxes, if
any, incurred with respect to the Registrable Securities shall be borne by the
Seller.
(c) UNDERWRITER'S CUTBACK. Notwithstanding Sections 2(a) and
2(b), if a Demand Registration or a Piggyback Registration is an underwritten
offering being made on behalf of SEi, and the managing underwriter or
underwriters advise SEi in writing that in their opinion the number of shares
of Common Stock requested to be included in such registration exceeds the
number which can be sold in such offering or would be reasonably likely to
adversely affect the price or distribution of the Common Stock offered in such
offering or the timing thereof, then the shares of Common Stock to be included
in such registration shall be the number of shares of Common Stock, adjusted on
a pro rata basis, that, in the opinion of such underwriter or underwriters, can
be sold without an adverse effect on the price, timing or distribution of the
Common Stock to be included. In an underwritten demand registration, the
number of shares to be sold by SEi or other selling shareholders shall be
reduced in accordance with such opinion and, if necessary, eliminated, before
there shall be any reduction in the number of shares to be sold by Holders.
(d) REGISTRATION NOT REQUIRED. Notwithstanding Sections 2(a) and
2(b), in the event the Holder or Holders request that any of the Registrable
Securities covered by this Agreement be sold in an underwritten offering or
otherwise request registration pursuant to this Agreement, SEi shall not be
required to take the action required or contemplated herein to accommodate or
permit such underwritten offering or other registration of the shares subject
to the request if SEi has provided to the requesting Holders an unqualified
opinion of counsel knowledgeable in Securities Act matters to the effect that
all of such Registrable Securities may immediately be sold by such Holders in a
brokered transaction under Rule 144 during any ninety (90) day period without
registration under the Securities Act and applicable state securities laws.
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<PAGE> 6
3. HOLD-BACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY THE HOLDERS. In the event
Registrable Securities are covered by a Registration Statement filed pursuant
to Section 2 of this Agreement, the Holders agree not to effect any public sale
or distribution of Common Stock, including a sale pursuant to Rule 144 under
the Securities Act, during the 15-day period prior to, and during the 90-day
period beginning on, the effective date of such Registration Statement (except
pursuant to such Registration Statement), if, and then only to the extent, so
requested in writing by SEi, in the case of a non-underwritten public
offering, or by the managing underwriter or underwriters, in the case of an
underwritten offering.
(b) RESTRICTIONS ON PUBLIC SECURITY SALE BY SEI. SEi agrees not
to make any filing to register and agrees not to effect or offer to effect any
public sale or distribution of or purchase any security (other than any such
sale or distribution of such Common Stock in connection with any transaction
subject to Rule 145 under the Securities Act or in connection with offers and
sales to employees under employee benefit plans) during the 15-day period prior
to, and during the 90-day period beginning on, the effective date of any
Registration Statement filed pursuant to Section 2(a) hereof.
4. REGISTRATION PROCEDURES. In connection with SEi's obligations under
Section 2 hereof, SEi shall use it best efforts to effect or cause to be
effected the registration of the Registrable Securities under the Securities
Act to permit offers and sales in accordance with the intended method or
methods of distribution thereof. SEi may require the Holders to use their best
efforts to furnish to SEi such information regarding the distribution of the
Registrable Securities as SEi may from time to time reasonably request in
writing. SEi agrees to obtain customary services and materials from its
counsel and accountants and to perform all requirements in connection with any
offering required by Section 2, including without limitation such customary
opinions of counsel and "cold comfort" letters from independent certified
public accountants as are reasonably requested by any underwriters. SEi
further agrees to (i) furnish Holders for whom shares are registered such
number of copies of a prospectus and preliminary prospectus, if applicable, as
such Holders may reasonably request; (ii) enter into customary agreements,
including an underwriting agreement (which shall include the indemnification
and contribution provisions under Section 5 or similar provisions), and to make
customary representations to any underwriters with respect to the registration
statement; (iii) make available to any underwriters its offices and records as
reasonably requested for the purpose of allowing the underwriters to conduct a
customary "due diligence" investigation; and (iv) list the shares registered on
such Holder's or Holders' behalf on the exchange or quotation system on which
the SEi Common Stock is at the time listed.
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<PAGE> 7
5. INDEMNIFICATION.
(a) SEi agrees to indemnify, to the extent permitted by law, each
Holder of Registrable Securities and (as applicable) its officers and directors
and each person or entity who controls such Holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, (in the case of a prospectus, always in
light of the circumstances under which the statements are made) except insofar
as the same are caused by or contained in any information furnished in writing
to SEi by such Holder or its affiliate expressly for use therein or by such
Holder's failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto after SEi has furnished such Holder
with a sufficient number of copies of the same. In connection with an
underwritten offering, SEi will indemnify such underwriters, their officers and
directors and each person or entity who controls such underwriters (within the
meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the Holders of Registrable Securities.
(b) In connection with any registration statement in which a
Holder of Registrable Securities is participating, each such Holder will
furnish to SEi in writing such information and affidavits as SEi reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify SEi, its
directors and officers and each person or entity and entity who controls SEi
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, (in the case of a
prospectus, always in light of the circumstances under which the statements are
made) but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such
Holder or its affiliate; provided that the obligation to indemnify will be
several, not joint and several, among such Holders of Registrable Securities
and the liability of each such Holder of Registrable Securities in the event
that more than one Holder is liable will be in proportion to and limited to the
net amount received by such Holder from the sale of Registrable Securities
pursuant to such registration statement.
(c) Any person or entity entitled to indemnification hereunder
will (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification; provided, however, that failure to
give such notice will not prejudice such person's or entity's right to
indemnification from the indemnifying party, except as to any losses suffered
by such person or entity which are attributable to such person's or entity's
failure to promptly give such notice to such indemnifying party and (ii) unless
in such indemnified party's
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<PAGE> 8
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. The indemnifying party will not be
subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
or entity of such indemnified party and will survive the transfer of securities
and the termination of this Agreement. SEi also agrees to make such provisions
as are reasonably requested by any indemnified party for contribution to such
party in the event SEi's indemnification is unavailable or unenforceable for
any reason.
6. REGULATION S OFFERING. The Seller agree that none of the Registrable
Securities will be offered for sale pursuant to Regulation S (as promulgated by
the SEC) without the prior written consent of SEi.
7. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. SEi has not entered into and will
not on or after the date of this Agreement enter into any agreement with
respect to the Common Stock which is inconsistent with the rights granted in
this Agreement to the Seller or which otherwise conflicts with the provisions
hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless (i) SEi has obtained the written consent of the
Holders to such amendment, modification, or supplement or (ii) SEi has obtained
from each Holder a waiver or consent to such departure.
(c) NOTICES. All notices, requests, demands and other
communications (collectively, "Notices") that are required or may be given
under this Agreement shall be in writing. All Notices shall be deemed to have
been duly given or made: if by hand, immediately upon delivery; if by
telecopier or similar device, immediately upon sending, provided notice is sent
on a business day during the hours of 9:00 a.m. and 6:00 p.m. at the location
of the party receiving the Notice, but if not, then immediately upon the
beginning of the first business day after being sent; if by FedEx, Express Mail
or any other reputable overnight delivery service, three business days after
being placed in the exclusive custody and control of said courier; and if
mailed by
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<PAGE> 9
certified mail, return receipt requested, ten business days after mailing.
Notwithstanding the foregoing, with respect to any Notice given or made by
telecopier or similar device, such Notice shall not be effective unless and
until (i) the telecopier or similar advice being used prints a written
confirmation of the successful completion of such communication by the party
sending the Notice, and (ii) a copy of such Notice is deposited in first class
mail to the appropriate address for the party to whom the Notice is sent. In
addition, notwithstanding the foregoing, a Notice of a change of address by
a party hereto shall not be effective until received by the party to whom such
Notice of a change of address is sent. All Notices are to be given or made to
the parties at the following addresses (or to such other address as either
party may designate by Notice in accordance with the provisions of this
Section):
(i) if to the Holders, at the address set forth in the
Acquisition Agreement, or at the most current address given by the Holders to
SEi by means of a notice given in accordance with the provisions of this
Section 7(c).
(ii) if to SEi, at the address set forth in the
Acquisition Agreement, or at the most current address given by SEi to the
Seller by means of a notice given in accordance with the provisions of this
Section 7(c).
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida.
(g) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(h) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective permitted successors and assigns of the parties
hereto whether so expressed or not. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or other permitted Holders of Registrable Securities are
also for the benefit of, and enforceable by, any subsequent permitted Holder of
Registrable Securities. The registration rights of the Holders under this
Agreement may be transferred to any transferee who lawfully acquires at least
fifteen thousand (15,000) shares of the Registrable Securities; provided,
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<PAGE> 10
however, that SEi is given written notice by the Holder at the time of such
transfer stating the name and address of the transferee and identifying the
securities with respect to which the rights under this Agreement are being
assigned; and provided further, that such transferee is a person who is
reasonably satisfactory to SEi and executes an agreement in writing agreeing to
be bound by the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SYKES ENTERPRISES, INCORPORATED
By: /s/ Scott J. Bendert
----------------------------
Scott J. Bendert,
Vice President - Finance
SELLER:
/s/ Hedi Fabinyi
--------------------------------
Hedi Fabinyi
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<PAGE> 1
EXHIBIT 5
FOLEY & LARDNER
ATTORNEYS AT LAW
POST OFFICE BOX 3391
TAMPA, FLORIDA 33601-3391
100 NORTH TAMPA STREET, SUITE 2700 33602-5804
TELEPHONE (813) 229-2300
FACSIMILE (813) 221-4210
February 17, 1998
Sykes Enterprises, Incorporated
100 North Tampa Street, Suite 3900
Tampa, Florida 33602
RE: Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is being furnished in connection with the Registration
Statement on Form S-3 (the "Registration Statement"), of Sykes Enterprises,
Incorporated (the "Company"), under the Securities Act of 1933, as amended (the
"Act"), for the registration of 290,000 shares of common stock, par value $.01
the "Shares").
As counsel for the Company, we have examined and are familiar with the
Articles of Incorporation and Bylaws of the Company; (a) the proceedings of the
Board of Directors of the Company relating to the issuance of the Shares; and
(b) such other Company records, documents and matters of law as we have deemed
to be pertinent.
Based upon our examination of such documents and our familiarity with such
proceedings, it is our opinion that:
1. The Company has been duly incorporated and is validly existing and in
good standing under the laws of the State of Florida.
2. The Shares are duly authorized, validly issued, fully paid and
nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5 in the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the prospectus. In giving this consent, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Act or the rules or regulations of the Securities and
Exchange Commission promulgated thereunder.
FOLEY & LARDNER
By: /s/ Martin A. Traber
--------------------------
MARTIN A. TRABER
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of Sykes Enterprises, Incorporated on Form S-3 of our report dated
February 11, 1998, on our audits of the consolidated financial statements and
financial statement schedules of Sykes Enterprises, Incorporated and
subsidiaries as of December 31, 1995 and 1996, and for the year ended July 31,
1994, the five months ended December 31, 1994, and the years ended December 31,
1995 and 1996, which report is included in the Company's Current Report on Form
8-K, dated September 26, 1997, and filed with the Securities and Exchange
Commission on February 13, 1998. We also consent to the incorporation by
reference in this registration statement of Sykes Enterprises, Incorporated on
Form S-3 of our report dated September 24, 1997, on our audits of the
consolidated financial statements and financial statement schedules of Sykes
Enterprises, Incorporated and subsidiaries as of December 31, 1995 and 1996,
and for the year ended July 31, 1994, the five months ended December 31, 1994,
and the years ended December 31, 1995 and 1996, which report is included in the
Company's Current Report on Form 8-K, dated June 16, 1997, and filed with the
Securities and Exchange Commission on October 21, 1997. We also consent to the
incorporation by reference in this registration statement of Sykes Enterprises,
Incorporated on Form S-3 of our report dated February 14, 1997, on our audits
of the consolidated financial statements and financial statement schedules of
Sykes Enterprises, Incorporated and subsidiaries as of December 31, 1995 and
1996, and for the year ended July 31, 1994, the five months ended December 31,
1994, and the years ended December 31, 1995 and 1996, which report is included
in the Annual Report on Form 10-K for the year ended December 31, 1996. We
also consent to the reference to our firm under the caption "Experts."
Tampa, Florida
February 18, 1998
<PAGE> 1
EXHIBIT 24.2
CERTIFICATE OF SECRETARY
THE UNDERSIGNED, MARGERY BASS, Secretary of SYKES ENTERPRISES,
INCORPORATED (the "Corporation"), hereby certify that the following resolutions
were adopted by the Board of Directors of the Corporation pursuant to a
unanimous written consent, effective February 2, 1998, and remain in full force
and effect:
RESOLVED, that the signing of the Registration Statement
relating to the registration of shares of the Company's Common
Stock issued to the former Quotasholders of TAS-I and TAS-II
as required by the rules and regulations of the Commission on
behalf of the Corporation by either the Chief Executive
Officer and the Chief Financial Officer, and each director,
with additions to, changes in, or deletions from the
Registration Statement as such officers and as such directors
may deem necessary or advisable is hereby authorized and
approved (such signing to be conclusive evidence that the
officers and directors signing the same consider such
additions, changes, or deletions necessary or advisable);
provided, however, that each of the officers and directors of
this Corporation is authorized to sign the Registration
Statement and any amendment thereto (either on behalf of this
Corporation, or as an officer, director, or otherwise) through
Scott J. Bendert and John L. Crites, Jr., or any one of them,
as duly authorized attorney or attorneys-in-fact; and it is
RESOLVED, that each officer or director who may be required to
sign the Registration Statement or any amendments, exhibits,
or other documents related thereto (whether for and on behalf
the Corporation, or in any other capacity) hereby is
authorized to execute a power of attorney constituting and
appointing Scott J. Bendert and John L. Crites, Jr., or any
one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him
and in his name, place, and stead, in any and all capacities,
to sign any and all pre- or post-effective amendments to the
Registration Statement, and to file the same with all exhibits
thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform
each and every act and thing requisite or necessary to be done
in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or
any of them, or their or his substitutes, may lawfully do or
cause to be done by virtue hereof.
DATED: February 17, 1998 /s/ Margery Bass
--------------------------
MARGERY BASS
