EXHIBIT 10.2
SEPARATION AGREEMENT
--------------------
THIS SEPARATION AGREEMENT AND GENERAL RELEASE ("Agreement") is entered into
effective as of April 1, 2001 by and between XXXXXXX X. XXXXXX ("Xxxxxx") and
SITEL CORPORATION ("SITEL").
SITEL and Xxxxxx have mutually agreed to end their employer-employee
relationship. This Agreement is intended to provide the terms of the mutual
separation.
1. RESIGNATION. Xxxxxx hereby resigns effective immediately from all
positions he holds as a director and/or officer of SITEL Corporation and any of
its subsidiaries and as a trustee of any of SITEL Corporation's benefit plans.
2. COMPENSATION. As a material inducement to Xxxxxx to enter into this
Agreement, SITEL agrees to pay Xxxxxx the equivalent of twelve (12) months of
Xxxxxx'x current annual base salary ($500,000) in equal installments and on the
dates which correspond to SITEL's regular paydays from and after the effective
date of this agreement. In the event of Xxxxxx'x death prior to completion of
payment of such installments, any remaining installments shall be paid to
Xxxxxx'x surviving spouse, if any, and otherwise to his estate.
With respect to any SITEL benefit plans in which Xxxxxx participated prior
to his resignation, Xxxxxx'x participation in such plans shall end as of the
date of this Agreement and Xxxxxx shall be entitled to such benefits accrued
prior to the date of termination of his participation as may be payable to him
in accordance with and subject to the terms and conditions of such plans as in
effect from time to time.
3. EFFECT ON OPTIONS. As of the date of this Agreement, Xxxxxx has certain
options to purchase common stock of SITEL which by their terms have become
non-forfeitable, meaning Xxxxxx retains them following this separation of
employment. For purposes of clarity, Xxxxxx'x non-forfeitable options (the
"non-forfeitable options") are as follows:
(a) 290,000 options with an exercise price of $3.50 each originally
granted on January 7, 1997, of which none are currently exercisable as
they are subject to a $9.00 price hurdle
(b) 200,000 options with an exercise price of $9.75 each originally
granted on February 17, 1998, of which 120,000 are currently
exercisable
(c) 128,595 options with an exercise price of $4.78125 each originally
granted on January 18, 1999, of which 51,438 are currently exercisable
(d) 146,405 options with an exercise price of $4.78125 each originally
granted on January 18, 1999, of which 41,830 are currently exercisable
Such non-forfeitable options shall remain outstanding and exercisable in
accordance with and subject to their terms and conditions as existed prior to
Xxxxxx'x resignation. If SITEL hereafter determines in its sole discretion to
remove the $9.00 price hurdle to exercisability from options held by all then
current SITEL employees, in that event SITEL at the same time will also remove
the $9.00 price hurdle to exercisability from the options held by Xxxxxx.
For purposes of clarity, Xxxxxx'x remaining options which are forfeitable,
and which by their terms and conditions terminate upon the effective date of
this Agreement, are the 110,000 award program options granted on January 7,
1997, the 125,000 options granted on January 3, 2000, and the 65,000 options
granted on January 11, 2001.
Xxxxxx acknowledges that following the effective date of this Agreement he
will accrue no further interest or vesting in any options to purchase stock of
SITEL and shall be limited in his rights to exercise stock options to the
non-forfeitable options described above.
4. FULL CONSIDERATION. Xxxxxx expressly acknowledges that the compensation
provided in Paragraph 2 includes consideration for the settlement, waiver,
release, and discharge of any and all claims arising under the common law or
under federal state or local statute, law or regulation, pertaining to
employment discrimination based on race/color, religion, sex, national origin,
disability, or age (Age Discrimination in Employment Act), wrongful discharge,
breach of contract, infliction of emotional distress, or any other reason
established by the common law or by federal, state or local laws.
5. COOPERATION. If any matters for which Xxxxxx was responsible during his
employment remain pending as of the date of this Agreement, Xxxxxx agrees to
provide any cooperation or assistance reasonably needed by SITEL to complete
such matters. If any claims, actions or proceedings involving or affecting
SITEL, its subsidiaries or affiliates, or their respective officers, agents and
employees, arise which pertain to any period, transaction or occurrence prior to
and including the date of this Agreement and in respect of which SITEL
reasonably believes Xxxxxx'x assistance or cooperation will be advisable, Xxxxxx
agrees to cooperate fully with SITEL in investigating, preparing and testifying
in respect of such claims, actions or proceedings. Xxxxxx'x assistance and
cooperation shall be provided without further consideration beyond that provided
in Paragraph 2 of this Agreement but Xxxxxx shall be reimbursed for all
reasonable out-of-pocket expenses in connection with such assistance and
cooperation which is incurred and reported in accordance with SITEL's policies
and procedures.
6. RETURN OF PROPERTY. Xxxxxx shall promptly return to SITEL all property
of SITEL which remains within Xxxxxx'x possession or control, including without
limitation, as applicable, keys, access cards, passwords, computers, cellular
phones, and automobiles.
7. NON-ADMISSION. This Agreement shall not in any way be construed as an
admission by SITEL, its officers, agents, or employees, of any wrongful or
unlawful act or omission whatsoever against Xxxxxx or any other person, or by
Xxxxxx of any wrongful or unlawful act or omission whatsoever against SITEL or
any other person. SITEL specifically disclaims any liability to, or wrongful or
unlawful act or omission against, Xxxxxx or any other
2
person on the part of itself, its officers, agents or employees. Xxxxxx
specifically disclaims any liability to, or wrongful or unlawful act or omission
against, SITEL or any other person on his part.
8. WAIVER. As a material inducement to SITEL and Xxxxxx, respectively, to
enter into this Agreement, Xxxxxx and SITEL represent to each other that he and
they, respectively, have not filed any lawsuits, charges, or complaints, with
any local, state or federal agency or court of law arising from his relationship
with SITEL, including the mutual termination of such relationship. Xxxxxx and
SITEL further represent to each other, respectively, that, subject to the
other's compliance with the terms of this Agreement, he or they will not seek to
recover any monetary damages against the other.
9. INTENT. The parties understand and agree that the overriding and
controlling intent of this Agreement is to accomplish a full release of all
claims or actions Xxxxxx has or might have against SITEL, as well as any parent,
subsidiary or affiliated company, or which SITEL has or might have against
Xxxxxx, its and their officers, agents, and employees, for any wrongful,
unlawful or unfair act or omission up to and including the date of the execution
of this Agreement. Xxxxxx, for himself and his successors and assigns, does
hereby release, settle, acquit and forever discharge SITEL, as well as any
parent, subsidiary, or affiliated company, its and their officers, agents and
employees, and SITEL, for itself and its successors and assigns, does hereby
release, settle, acquit and forever discharge Xxxxxx, of and from any and all
claims, actions, causes of action, rights, demands, debts, damages, or any
action of whatever nature arising from or during Xxxxxx'x relationship with
SITEL, including the mutual termination thereof.
10. KNOWING AND VOLUNTARY. Xxxxxx expressly acknowledges that he
understands all the provisions of this Agreement and that he is knowingly and
voluntarily entering into this Agreement. Xxxxxx further acknowledges that SITEL
has encouraged and given him the opportunity to thoroughly discuss all aspects
of this Agreement with his attorney and other advisors before signing this
Agreement.
11. GOVERNING LAW. This Agreement is made and entered into in the State of
Maryland and shall in all respects be interpreted, enforced, and governed under
the laws of said State. The language of all parts of this Agreement shall in all
cases be construed as a whole, according to its fair meaning, and not strictly
for or against any of the parties hereto.
12. EFFECT OF INVALIDITY. If any provision of this Agreement is declared or
determined by any court of competent jurisdiction to be illegal, invalid, void,
or unenforceable, the legality, validity and enforceability of the remaining
provisions shall not be affected thereby, and such illegal, invalid, void or
unenforceable or invalid provision shall be deemed not a part of this Agreement.
13. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
between the parties and, unless otherwise specified herein, fully supersedes any
and all prior agreements or understandings between the parties as to Xxxxxx'x
employment, including without limitation his employment agreement dated as of
January 1, 2000, except as expressly provided in Paragraph 3
3
and as provided below in this Paragraph 13: (a) Xxxxxx acknowledges his
continuing obligations to comply with the provisions of the Confidentiality and
Non-Competition Agreement between SITEL and Xxxxxx dated on or about January 27,
1997 (the "Non-Compete"), which agreement remains in full force and effect.
SITEL agrees that the 18 month period specified in the Non-Compete shall
commence with the effective date of this Agreement (as opposed to commencing at
the conclusion of the period that compensation is paid pursuant to Paragraph 2).
(b) SITEL and Xxxxxx specifically acknowledge that the Indemnification Agreement
dated on or about January 27, 1997 relating to Xxxxxx'x service as an officer
and director remains in effect according to its existing terms and conditions.
14. OPPORTUNITY TO REVIEW. Xxxxxx expressly acknowledges that SITEL has
advised him that he may take up to twenty-one (21) days in which to review the
terms of this Agreement, and that following his execution of this Agreement, he
has an additional seven (7) days in which to revoke his agreement. Any such
revocation shall not affect the resignations tendered by Xxxxxx pursuant to
Paragraph 1, which shall remain in full force and effect from the date thereof.
Furthermore, in the event of any such revocation, the resignations tendered by
Xxxxxx shall, solely for purposes of paragraph 7(d) of Xxxxxx'x existing
employment agreement, neither be presumed to be voluntary nor involuntary.
/s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx
SITEL CORPORATION
By:/s/ Xxxxx X. Xxxxx
---------------------------
Xxxxx X. Xxxxx, Chairman
4
