exv10w9



 





EXHIBIT 10.9




Execution Copy




West Corporation

11808 Miracle Hills Drive

Omaha, Nebraska 68154




October 24, 2006




Mr. Gary L. West

Ms. Mary E. West

c/o West Corporation

11808 Miracle Hills Drive

Omaha, Nebraska 68154




Dear Gary and Mary:




     We refer to (i) the letter agreement dated May 31, 2006 between you and Omaha Acquisition
Corp., a Delaware corporation (“Newco”), and (ii) Section 8.3(e) of the Agreement and Plan
of Merger dated May 31, 2006 (“Merger Agreement”) by and among Newco and West Corporation,
a Delaware corporation (the “Company”), both of which contemplate that you will enter into
this agreement with respect to non-competition, non-solicitation, preservation of confidential
information and other matters. Capitalized terms used and not otherwise defined herein are used in
this letter agreement as defined in the Merger Agreement.



     Your execution and delivery of this agreement is a material inducement to Newco entering into
the Merger Agreement; and Newco and its investors are placing substantial reliance on your entering
into this agreement and on your compliance with the terms and conditions of this agreement in
proceeding with the Merger Agreement and the recapitalization transactions contemplated thereby.
You agree that this agreement shall become effective as of the date hereof.



     1. Confidentiality



     You acknowledge that the success of the Company after the Closing depends upon the continued
preservation of the confidentiality of certain information possessed by you, that the preservation
of the confidentiality of such information by you is an essential premise of the bargain reflected
in the Merger Agreement, and that Newco would have been unwilling to enter into the Merger
Agreement in the absence of this recognition. Accordingly, you hereby agree that you will not, and
that you will cause your employees, agents, financial and other advisors, and affiliates
(collectively, your “Representatives”) not to, at any time on or after the Closing, directly or
indirectly, without the prior written consent of the Company, use, other than in connection with
your continuing investment in the Company, or disclose any confidential or proprietary information
involving or relating to the Company (whether now known or hereafter obtained, including any such
information disclosed to you as contemplated by Section 3 below); provided, however, that the
information subject to the foregoing provisions of this sentence will



 









 







not include any information generally available to or known by the public or which was or becomes
available to you or your Representatives on a non-confidential basis from a source other than the
Company or any of its officers, directors, employees or affiliates, provided such other source was
not known by you after reasonable inquiry to be bound by a confidentiality obligation to the
Company; and provided, further, that the provisions of this agreement will not prohibit (x) any
retention of copies of records or (y) disclosure (a) required by any applicable legal requirement
so long as to the extent practicable reasonable prior notice is given of such disclosure and a
reasonable opportunity is afforded to contest the same or (b) made in connection with the
enforcement of any right or remedy relating to this agreement, the Stockholder Agreement, the
Registration Rights and Coordination Agreement (each to be entered into on or about the date hereof
among the Company and its stockholders, including you) or the Merger Agreement. You agree that you
will be responsible for any breach or violation of the provisions of this agreement by any of your
Representatives.



     Notwithstanding the foregoing, you and each of your Representatives may disclose to any and
all persons, without limitation of any kind, the tax treatment and tax structure of the Merger
Agreement and all materials of any kind (including opinions or other tax analyses) that are
provided to you relating to such tax treatment and tax structure, all as contemplated by Treasury
Regulation Section 1.6011-4(b)(3)(iii). The preceding disclosure authorization shall not affect,
or prevent any person from asserting any attorney-client privilege, work-product doctrine, or other
applicable privilege or defense against disclosure of such information.



     2. Non-competition and Non-solicitation



     Until the later of three years from Closing or such time as you, collectively, no longer own
more than 10% of the outstanding shares of the Company’s common stock, you agree not to directly or
indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or
otherwise, compete with the Company or its subsidiaries or advise or otherwise assist, or invest in
or make loans to, any of their competitors; provided, however, that you may collectively purchase
or otherwise acquire up to 5% of any class of the securities of any Person so long as such
ownership shall be passive and for investment purposes only.



     You agree not to recruit, offer employment to, employ, engage as a consultant, lure or entice
away, or in any other manner persuade or attempt to persuade any current or former employees, to
terminate or change their relationship with the Company and its subsidiaries; provided, however,
that (i) you may hire any former employees who have not been employed by the Company or any of its
subsidiaries for a period of more than 12 months and (ii) you shall be permitted to hire Jan Kahnk.



     3. Information Rights



     For so long as you own, collectively, more than 20% of the shares retained by you after giving
effect to the Merger, the Company will furnish to you when available the following:



     (i) After the end of each fiscal year of the Company, (a) the consolidated balance sheet of
the Company and its subsidiaries as at the end of each such fiscal year and the consolidated



 









 







statements of income, cash flows and changes in stockholders’ equity for such year of the Company
and its subsidiaries, accompanied by the audit report of independent certified public accountants
of recognized national standing with respect thereto; and (b) the Company’s annual business plan
and budget for the succeeding fiscal year.



     (ii) After the end of each fiscal quarter of the Company, the unaudited consolidated balance
sheet of the Company and its subsidiaries as at the end of such quarter and the consolidated
statements of income, cash flows and changes in stockholders’ equity for such quarter and the
portion of the fiscal year then ended of the Company and its subsidiaries.


[The remainder of this page is intentionally left blank. Signature pages follow.]




 









 





     You agree that you will keep confidential and not disclose, on the terms and subject to the
conditions and limitations of Section 1 above, any confidential information obtained from the
Company pursuant to the terms of this Section 3, all in accordance with the terms of Section 1
above.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	WEST CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Thomas B. Barker	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Name: Thomas B. Barker	 	 
	 	 	 	 	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Acknowledged, Confirmed and Agreed:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Gary L. West	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	    Gary L. West, individually	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Mary E. West	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	    Mary E. West, individually	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Acknowledged:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Omaha Acquisition Corp.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Jeff Swenson	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	Name: Jeff Swenson	 	 	 	 	 	 	 	 
	Title: Vice President and Treasurer