EXHIBIT 10.16
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
Employment Agreement made effective October 30, 2001, between SITEL
CORPORATION, a Minnesota corporation ("Company") and XXXX X. XXXXXXX
("Executive").
THE PARTIES AGREE AS FOLLOWS:
1. EMPLOYMENT AND DUTIES. Company hereby employs Executive as its
Executive Vice President-Corporate Development. The duties and
responsibilities of Executive shall include duties and responsibilities
consistent with Executive's corporate offices and positions, including
those set forth in the bylaws of Company from time to time, and such
other duties and responsibilities which the Chief Executive Officer of
Company from time to time may assign to Executive.
2. TERM. The term of Executive's employment under this Agreement shall
begin as of the date hereof and continue for one year through October
29, 2002 unless sooner terminated in accordance with this Agreement
("Term").
3. EFFORTS ON BEHALF OF COMPANY AND OTHER ACTIVITIES. During the Term,
to the best of his ability and using all his skills, Executive shall
devote substantially all of his working time and efforts to the
diligent and faithful performance of his duties and responsibilities
under this Agreement. However, Executive may devote a reasonable amount
of his time to civic, community, or charitable activities.
4. PLACE OF EMPLOYMENT. Executive's duties and responsibilities are
expected to involve frequent travel. Company shall furnish Executive
with an office, secretarial and other support services consistent with
those currently provided and such other facilities and services at such
locations as may be reasonably required to permit Executive to fulfill
the duties of his employment.
5. BASE SALARY. For all services to be rendered by Executive pursuant to
this Agreement, Company agrees to pay Executive during the Term a base
annual salary of $230,000. The term "Base Salary" as used in this
Agreement shall mean the base annual salary established by this Section
5. The Base Salary shall be paid in periodic installments in accordance
with Company's regular payroll practices, but in any event no less
frequently than monthly.
6. ADDITIONAL COMPENSATION.
(a) BONUS. For each calendar year during the Term, Executive shall be
eligible to participate in the Company's bonus program for senior
executives on the terms established by the Compensation Committee
for each such year. For the year 2001, Executive is eligible for an
annual bonus potential of up to 100% of Base Salary; the criteria
for earning such bonus shall be based on identified goals and
objectives established in accordance with the Executive Committee
bonus plan approved by the Compensation Committee.
(b) STOCK OPTION PLAN. Executive has previously been granted options to
purchase shares of SITEL common stock. Any further grants of stock
options to Executive shall be at the sole discretion of the
Compensation Committee.
(c) BENEFIT PLANS. During the Term, Executive (and his eligible
dependents where applicable) shall be entitled to participate in
the benefit plans offered from time to time by Company to its
senior executive officers, on terms (including Company and employee
contribution percentages, waivers of waiting periods, applicable
deductibles, etc.) no less favorable than those provided generally
to other senior executive officers of the Company, including
without limitation, as may be applicable, individual or group
medical, hospital, dental and long-term disability insurance
coverages, group life insurance coverage, 401(k), and 401(n) plans.
(d) VACATIONS AND HOLIDAYS. During the Term, Executive shall be
entitled to paid vacation days, holidays and time off per calendar
year (pro-rated for partial calendar years of employment) as are
consistent with the Company's standard benefits programs in which
senior executive officers participate.
(e) EXPENSES. During the Term, Executive shall be entitled to prompt
reimbursement by Company of all reasonable ordinary and necessary
travel, entertainment, and other expenses incurred by Executive (in
accordance with the policies and procedures established by Company
for its senior executive officers) in the performance of his duties
and responsibilities under this Agreement; PROVIDED that Executive
shall properly account for such expenses in accordance with Company
policies and procedures, which may include but are not limited to
itemized accountings.
7. TERMINATION OF EMPLOYMENT.
(a) DEATH. Executive's employment under this Agreement shall terminate
upon Executive's death. If Executive's employment terminates
pursuant to this Section 7(a), Executive or his legal
representative shall be entitled to receive the Base Salary up
through the date of Executive's death; any bonus earned by
Executive pursuant to Section 6(a) for a calendar year already
completed but not yet paid; and any benefits to which Executive is
entitled pursuant to Sections 6(c) through 6(e) up through the date
of Executive's death.
(b) DISABILITY. If Executive becomes incapable by reason of physical
injury, disease, or mental illness from substantially performing
his duties under this Agreement for a continuous period of three
months or for more than 90 days in the aggregate during any 12
month period, then Company may terminate Executive's employment
under this Agreement effective upon 30 days written notice. If
Executive's employment terminates pursuant to this Section 7(b),
Executive or his legal representative shall be entitled to receive:
the Base Salary up through the effective date of termination; any
bonus earned by Executive pursuant to Section 6(a) for a calendar
year already completed but not yet paid; and any benefits to which
Executive is entitled pursuant to Sections 6(c) through 6(e) up
through the effective date of termination.
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(c) FOR CAUSE. Company also may terminate Executive's employment under
this Agreement for cause. For purposes of this Agreement, "for
cause" shall mean only (i) Executive's confession or conviction of
theft, fraud, embezzlement, any felony, or any crime involving
dishonesty with regard to the Company or any subsidiary or
affiliate of the Company, (ii) Executive's excessive absenteeism
without reasonable cause (other than because of a disability
described in Section 7(b), (iii) habitual and material negligence
by the Executive in the performance of Executive's duties and
responsibilities as described in Section 1 (other than because of a
disability described in Section 7(b)) and Executive's failure to
cure such negligence within 30 days after Executive's receipt of a
written notice from the Chief Executive Officer setting forth in
reasonable detail the particulars of such negligence, or (iv)
material failure by Executive to comply with a lawful directive of
the Chief Executive Officer (other than because of a disability
described in Section 7(b)) and Executive's failure to cure such
non-compliance within 10 days after Executive's receipt of a
written notice from the Chief Executive Officer setting forth in
reasonable detail the particulars of such non-compliance.
Termination shall occur effective 30 days after "for cause" occurs
under one of the above clauses (i) through (iv). If Executive's
employment terminates pursuant to this Section 7(c), Executive
shall be entitled to receive the Base Salary up through the
effective date of termination and any benefits to which Executive
is entitled pursuant to Sections 6(c) through 6(e) up through the
effective date of termination, but shall not be entitled to any
bonus for a completed calendar year which has not yet been paid.
(d) VOLUNTARY RESIGNATION. Executive may voluntarily resign from
Company's employ at any time upon at least 30 days prior written
notice of the effective date of such resignation. If Executive
voluntarily resigns, Executive shall be entitled to receive the
Base Salary up through the effective date of such resignation and
any benefits to which Executive is entitled pursuant to Sections
6(c) through 6(e) up through the effective date of such
resignation, but shall not be entitled to any bonus for a completed
calendar year which has not yet been paid.
(e) CHANGE OF CONTROL. If Executive's employment under this Agreement
is terminated by the Company other than for cause within three
months following a Change of Control (as defined below), then
Executive shall be entitled to continue to receive the Base Salary
provided for in Section 5 for a period of 12 months after the
effective date of such termination of employment on the Company's
normal payroll dates during such period; provided, however, that if
Executive accepts employment with another company during such
salary continuation period, Executive shall immediately notify
Company of such other employment and the payments pursuant to this
Section 7(e) shall be reduced by the amount of the salary received
by Executive from the other employer during such salary
continuation period. For purposes of this Agreement, the term
"Change of Control" shall mean (i) a consolidation or merger of the
Company with or into any other person (including, without
limitation, any corporation, partnership, limited liability
company, or trust), other than a consolidation or merger in which
the Company is the surviving entity and upon consummation of which
the holders of voting securities of the Company immediately prior
to such transaction continue to own, directly or indirectly, at
least a majority of the voting securities of the Company, as the
surviving entity, immediately following such transaction, (ii) a
sale of all or substantially all of the assets of the
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Company, in a single transaction or series of related transactions,
or (iii) a sale or other disposition of more than 50% of the voting
stock of the Company (whether issued and outstanding, newly issued
or from treasury, or any combination thereof), in a single
transaction or series of related transactions.
(f) WITHOUT CAUSE. The Company may terminate Executive's employment
under this Agreement without cause, which for purposes of this
Agreement shall include any termination of Executive's employment
by Company other than "for cause" as defined in Section 7(c) and
other than because of disability pursuant to Section 7(b), upon no
less than 30 days prior written notice. Furthermore, if without
Executive's written consent, Executive's base salary is decreased
below the Base Salary level established by Section 5, or
Executive's title, authority, role or level of responsibilities
with the Company is decreased below that established by Section 1
(each of the foregoing, an "Adverse Change"), and Executive gives
written notice of his termination of his employment with Company
because of the Adverse Change within 30 days after the effective
date of the Adverse Change, then such shall be considered a
termination of Executive's employment by Company without cause for
purposes of this Section 7(f) effective as of the 30th day after
the effective date of the Adverse Change. If the Company terminates
Executive's employment without cause pursuant to this Section 7(f),
then following such termination Executive shall be entitled to
receive such severance benefits, if any, as are then provided by
the Company to its Executive Vice Presidents under Company policies
or programs for senior executive officers in effect at such time;
any bonus earned by Executive pursuant to Section 6(a) for a
calendar year already completed but not yet paid; and any benefits
to which Executive is entitled pursuant to Sections 6(c) through
6(e) up through the effective date of termination.
8. NOTICE OF TERMINATION. Any Termination of Executive's employment by
Company shall be communicated in a written Termination Notice to
Executive. For purposes of this Agreement, a "Termination Notice" shall
mean a notice from the Chief Executive Officer which shall indicate the
specific termination provision in this Agreement relied upon and, if
applicable, shall set forth in reasonable detail the facts and
circumstances providing a basis for termination of Executive's
employment under the provision so indicated.
9. SUCCESSORS AND ASSIGNS. This Agreement and all rights under this
Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the parties hereto and their respective personal or
legal representatives, executors, administrators, heirs, distributees,
devisees, legatees, successors, and assigns. This Agreement is personal
in nature, and neither of the parties to this Agreement shall, without
the written consent of the other, assign or transfer this Agreement or
any right or obligation under this Agreement to any other person or
entity, except that the Company may assign this Agreement to a
successor corporation.
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10. NOTICES. For purposes of this Agreement, notices and other
communications provided for in this Agreement shall be deemed to be
properly given if delivered personally or sent by United States
certified mail, return receipt requested, postage prepaid, or sent by
overnight delivery service, addressed as follows:
If to Executive: At Executive's home address on file at the
Company
If to Company: SITEL Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Chief Executive Officer
or to such other address as either party may have furnished to the
other party in writing in accordance with this Section. Such notices or
other communications shall be effective when received if delivered
personally or when deposited in the U.S. mail if delivered by certified
mail or when deposited with the overnight delivery service if delivered
by that method. Notices also may be given by facsimile and in such case
shall be deemed to be properly given when sent so long as the sender
uses reasonable efforts to confirm and does confirm the receiver's
receipt of the facsimile transmission.
11. MISCELLANEOUS. No provision of this Agreement may be modified, waived,
or discharged unless such waiver, modification, or discharge is agreed
to in writing and is signed by Executive and an authorized officer of
Company. No waiver by either party to this Agreement at any time of any
breach by the other party of, or compliance by the other party with,
any condition or provision, of this Agreement to be performed by the
other party shall be deemed to be a waiver of similar or dissimilar
provisions or conditions at the same or any prior or subsequent time.
12. VALIDITY. The invalidity or unenforceability of any provision(s) of
this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement, which other provision shall remain
in full force and effect; nor shall the invalidity or unenforceability
of a portion of any provision of this Agreement affect the validity or
enforceability of the balance of such provision.
13. COUNTERPARTS. This document may be executed in one or more
counterparts, each of which shall be deemed to be an original and all
of which together shall constitute a single agreement.
14. HEADINGS. The headings of the sections and subsections contained in
this Agreement are for reference purposes only and shall not in any way
affect the meaning or interpretation of any provision of this
Agreement.
15. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal substantive laws, and not the conflicts of
law principles, of the State of Maryland.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties with respect to the terms of Executive's employment with
the Company and cancels and supersedes any prior agreements and
understandings of the parties with respect to such subject matter;
provided, however, that this Agreement shall not affect any
non-competition
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and confidentiality agreements previously entered into by Executive
with the Company each of which shall remain in full force and effect
according to their current terms. There are no representations,
warranties, terms, conditions, undertakings or collateral agreements,
express, implied or statutory, between the parties with respect to the
terms of Executive's employment other than those set forth in this
Agreement.
(Signature page follows)
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SIGNATURE PAGE TO
EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, Company and Executive have executed this Agreement.
SITEL Corporation, a Minnesota
corporation
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx, Chief Executive Officer
/s/ Xxxx X. Xxxxxxx
---------------------------------------
XXXX X. XXXXXXX
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