This Agreement (the "Agreement") is made as of August 4, 2006, between
SITEL Corporation ("SITEL") and XXXX Partners LLC ("XXXX", and with SITEL, the
"Parties").
1. APPOINTMENT OF DIRECTORS. In order that certain individuals
designated by XXXX as set forth below may join SITEL's Board of Directors (the
"Board"), the Parties agree, provided with respect to SITEL's obligations in
this Section 1 that there has been no material breach of this Agreement by XXXX,
as follows:
(a) (i) Xxxxxx X. Xxxxxx shall resign from the Board, (ii) the Board
shall appoint Xxxxxxx X. Key as a Class II Director on the Board and (iii) the
Board shall appoint Xxxxxx X. Xxxx as a Class I Director on the Board. Such
resignation and appointments shall be completed and effective no later than ten
(10) business days (or such shorter period of time as the Parties may agree)
after the date hereof.
(b) Upon the earlier of (i) six (6) months from the date hereof and
(ii) delivery of a written request from XXXX to SITEL and the approval of a
majority of the Board of such request (the "Xxxxx Resignation Date"), (A) Xxxxxx
X. Xxxxx shall resign from the Board and (B) the Board shall appoint Xxxxxxx
Xxxxxx as a Class III Director on the Board to fill the resulting vacancy. Such
resignation and appointment shall be completed and effective no later than five
(5) business days (or such shorter period of time as the Parties may agree)
after the Xxxxx Resignation Date, provided, however, that such five (5) day time
period shall be extended as necessary to allow the following events to occur if:
(x) XXXX has not yet provided the Board with the information regarding Xxxxxxx
Xxxxxx required to be disclosed for board candidates in a proxy statement
related to the election of such directors under the federal securities laws and
allowed the Board at least ten (10) business days to review, (y) XXXX has not
yet provided evidence sufficient to allow the Board to determine in its good
faith judgment that Xxxxxxx X. Key or one of the other XXXX Designees (as
defined below) qualifies as an "audit committee financial expert" under
applicable Securities and Exchange Commission (the "SEC") rules and allowed the
Board at least ten (10) business days to review or (z) at least one XXXX
Designee determined to be an "audit committee financial expert" pursuant to the
preceding clause (y) (provided that the Board shall make such determination
promptly and in good faith) has not yet informed the Board that he or she is
willing and able to serve as the Chairman of SITEL's Audit Committee. The
Parties will arrange for an in-person or telephonic meeting between members of
the Board's Nominating/Corporate Governance Committee and Xxxxxxx Xxxxxx during
such period if such meeting has not already occurred prior thereto.
(c) In the event that Xxxxxxx Xxxxxx is unwilling or unable to serve
on the Board prior to his appointment thereof or is determined not to be an
independent director pursuant to the New York Stock Exchange listing standards
in the reasonable good faith judgment of the Board, XXXX shall promptly
designate an individual with reasonably adequate business experience and of
reasonably good reputation and character and such individual shall be appointed
within ten (10) business days of such designation (provided that such period
shall be extended in the same manner provided for in paragraph (b) above as
necessary) and such
appointment shall be subject to the same right of replacement until such vacancy
has been filled pursuant to this Agreement. The individuals appointed to the
Board pursuant to this Section 1 shall be referred to herein as "XXXX
Designees".
(d) Prior to the appointment to the Board of the XXXX Designees
appointed pursuant to paragraph (a) above, the Board shall be permitted to
reclassify, through a series of resignations and appointments to new classes,
its existing directors to facilitate the appointment of each XXXX Designee to
the applicable class set forth in paragraphs (a) or (b) above, provided with
respect to such reclassification that (i) only non-management members of the
Board shall resign or be appointed, (ii) no individual will be appointed who is
not currently a member of the Board and (iii) directors will be allocated such
that, following the appointment of the XXXX Designees, the directors will be
evenly divided among the three classes of directors on the Board.
(e) The XXXX Designees will be governed by the same protections and
obligations regarding confidentiality, conflicts of interest, fiduciary duties,
trading and disclosure policies and other governance guidelines, and shall have
the same rights and benefits as are applicable to the independent directors on
the Board.
(f) With respect to SITEL's next annual meeting after the date
hereof (expected to be held in 2006) or any special meeting held prior thereto
or in lieu thereof where the meeting agenda includes the election or re-election
of one or more directors to the Board (the "2006 Shareholders Meeting"), the
Board shall nominate each XXXX Designee who has been appointed as a director in
a class whose term expires at the 2006 Shareholders Meeting to continue serving
as a director of such class and recommend in SITEL's proxy statement for the
2006 Shareholders Meeting and at the 2006 Shareholders Meeting that shareholders
vote for such XXXX Designee's election.
(g) The Board shall not change or revoke any recommendation referred
to in paragraph (f) above or take any action inconsistent with such paragraph,
and shall not, nor encourage any third party to, propose or recommend, any other
matters related to the Board, including its size and composition, at the 2006
Shareholders Meeting or any meeting of shareholders prior thereto. Nothing
contained herein shall require SITEL to hold the 2006 Shareholders Meeting or to
hold the 2006 Shareholders Meeting prior to any other meeting of shareholders
where the election or re-election of directors is not on the agenda.
2. VOTING ACTIVITIES. Provided there has been no material breach of
this Agreement by the other Party:
(a) At the 2006 Shareholders Meeting, provided that such slate
consists only of current independent members of the Board and/or XXXX Designees
appointed to the Board in accordance with Section 1 hereof, XXXX shall cause all
shares of voting stock of SITEL beneficially owned by XXXX or any of its
affiliates or associates (as defined in Rule 12b-2 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (collectively, "Affiliates"), as
of the record date for such meeting, to be present for quorum purposes and to be
voted in favor of the slate of directors that the Board has nominated for
election to the Board. In addition, upon
SITEL's filing with the SEC its proxy statement for the 2006 Shareholders
Meeting, XXXX shall provide a statement in support of such slate of directors in
a form and substance to be reasonably agreed with SITEL to be included in a
public statement released by SITEL.
(b) Neither XXXX nor any of its Affiliates will file proxy soliciting
materials or solicit proxies with respect to the 2006 Shareholders Meeting. In
addition, beginning on the date hereof and continuing for one (1) year, other
than as set forth in this Agreement: (i) neither XXXX nor any of its Affiliates
will, and neither it nor its Affiliates will assist, encourage or advise others
to, request a special meeting or an annual meeting of SITEL's shareholders or
submit, or participate in, any shareholder proposal to SITEL or any "shareholder
access" proposal that may be adopted by the SEC, (ii) XXXX shall cause all
shares of voting stock of SITEL beneficially owned by XXXX or any of its
Affiliates as of the record date of any special meeting or annual meeting (other
than the 2007 Shareholders Meeting (as defined below)) held during such period
to be present for quorum purposes and to be voted in accordance with the Board's
recommendation with respect to any shareholder proposal to SITEL or any
"shareholder access" proposal that may be adopted by the SEC, (iii) neither
Party nor its Affiliates will make any public statement regarding the other
Party or such other Party's officers, directors or employees (except as required
by law or by subpoena, civil investigative demand or similar legal process in
the opinion of its counsel and only after prior notice to and, to the extent
practicable, consultation with the other Party; provided, however, that a public
statement shall not be deemed to be legally required if such legal requirement
would not have arisen but for voluntary conduct of such Party or its
representatives) unless approved in writing in advance by the other Party and
(iv) neither Party or its Affiliates will enter into any discussions,
negotiations, arrangements or understandings with any third party with respect
to any of the foregoing restrictions applicable to such Party, or otherwise
form, join or in any way participate in a "group" (as defined in Section
13(d)(3) of the Exchange Act) in connection with any of the foregoing
restrictions applicable to such Party.
Notwithstanding anything herein to the contrary, (i) XXXX may submit
notice of any shareholder business and any director nominations in regards to
SITEL's next annual meeting after the date of the 2006 Shareholders Meeting
(which next meeting is expected to be held in 2007) or any special meeting held
in lieu thereof (the "2007 Shareholders Meeting"), provided that such notice may
be submitted no more than five (5) calendar days prior to the date that such
notice is required pursuant to SITEL's bylaws in order to be timely and (ii) the
restrictions in clauses (iii) and (iv) of the immediately preceding paragraph
shall not apply to either Party following the delivery of any such notice by
XXXX. Nothing contained herein shall require SITEL to hold the 2007 Shareholders
Meeting before the one (1) year anniversary of the date of the 2006 Shareholders
Meeting, and XXXX agrees that it will not request or take any action seeking to
cause SITEL to hold such meeting before such anniversary.
Notwithstanding anything herein to the contrary, (i) SITEL agrees to
issue a press release within two (2) business days following the execution of
this Agreement substantially in the form attached as Exhibit A, (ii) each Party
may disclose the terms of this Agreement and other required information in a
Form 8-K or Schedule 13D, as applicable, and (iii) each Party may in good faith
publicly disclose the terms of this Agreement and respond to questions relating
thereto, provided that neither Party will make any disparaging statements
regarding the other Party or its directors, officers or employees in such
responses.
3. NO WAIVER. No failure or delay by either Party in exercising any
right or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial waiver thereof preclude any other or further exercise thereof
or the exercise of any other right or remedy hereunder.
4. INJUNCTIVE RELIEF. Each Party acknowledges and agrees that, because
of the unique nature of this Agreement, the other Party would suffer irreparable
harm in the event of a breach by such Party of any of its obligations under this
Agreement, such that monetary damages would be inadequate to compensate the
non-breaching Party for such a breach. Each Party agrees that under such
circumstances the other Party shall be entitled to injunctive relief, in
addition to any other appropriate relief at law to which such Party shall be
entitled, and waives any requirement for the securing or posting of any bond in
connection with such remedy.
5. COSTS; ATTORNEYS' FEES. If any suit or other action is commenced to
construe or enforce any provision of this Agreement, the prevailing Party, in
addition to all other amounts such Party shall be entitled to receive from the
non-prevailing Party to such action, shall be awarded reasonable attorneys' fees
and court costs.
6. NOTICE. Notices and other communications hereunder shall be in
writing and shall be effective when received by express delivery or facsimile:
If to XXXX, to If to SITEL, to
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
XXXX Partners LLC SITEL Corporation
000 Xxxx Xxxxxx, Xxxxx 0000 0000 Xxxxxxxxxxxxxx
Xxxxx
Xxx Xxxx, XX 00000 Xxxxx, XX 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
7. MISCELLANEOUS. This Agreement (i) shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts entered into and to be performed wholly within said State, (ii)
constitutes the entire agreement of the Parties hereto with respect to the
subject matter hereof, superseding all prior agreements, written or oral, other
than the Confidentiality Agreement between the Parties dated July 24, 2006, the
Confidentiality Agreement between the Parties dated March 2, 2006, and the
Shareholder Meeting Notice Agreement dated March 16, 2006, as amended on June 9,
2006, (iii) may not be amended, except in writing, (iv) may be executed in
counterparts, (v) shall be binding upon and inure to the benefit of each Party's
successors and permitted assigns, (vi) may not be assigned without the prior
written consent of the other Party and (vii) shall be enforceable,
notwithstanding the unenforceability of any particular provision hereof, with
respect to all other provisions hereof. This Agreement does not amend or
supersede any existing agreement between SITEL and any affiliate of XXXX.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
SITEL CORPORATION
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer
XXXX PARTNERS LLC
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title:Partner
ACKNOWLEDGED AND AGREED:
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
--------------------------
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
--------------------------
EXHIBIT A
SITEL CORPORATION AND XXXX PARTNERS LLC ANNOUNCE
SETTLEMENT AND NEW BOARD MEMBERS
Omaha, NE - August 7, 2006 - SITEL Corporation (NYSE:SWW), a leading global
provider of outsourced customer services, and XXXX Partners LLC ("XXXX"), the
Company's largest shareholder, announced today that they have agreed to a
settlement and the addition to the Company's board of directors of Xxxxxx X.
Xxxx and Xxxxxxx X. Key, both designated by XXXX, and the addition of a third
XXXX designee within six months.
Pursuant to an agreement entered into on August 4, the Company's board has
approved a reconstituted board consisting of Cyrus X. Xxxxxxxxx, Xx., Xxxxx X.
Xxxxxxx and Xx. Xxxx as Class I Directors with terms to expire at the Company's
2008 annual meeting of stockholders; Xxxxx X. Xxxxx, Xxxxx X. Xxxxxx and Mr. Key
as Class II Directors with terms to expire at the Company's 2006 annual meeting
of stockholders; and Xxxxxxx X. XxXxxx, Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx as
Class III Directors with terms to expire at the Company's 2007 annual meeting of
stockholders. Xxxxxx X. Xxxxxx has resigned from the board after eleven years of
distinguished service. The transition in membership of the board was effective
on August 4, 2006. In addition, within the next six months, Xx. Xxxxx will
resign from the board and Xxxxxxx Xxxxxx will be appointed to fill the resulting
Class III Director vacancy.
Xx. Xxxx is a private investor and a Managing Director at Cornerstone Equity
Investors, LLC, a private equity firm which Xx. Xxxx co-founded in 1996. Prior
to that, Xx. Xxxx was a Managing Director and Partner with Prudential Equity
Investors, a private equity firm which he joined in 1987 following his
employment at The Prudential Investment Corporation from 1985 to 1987. Xx. Xxxx
also serves as a director of Novatel Wireless, Inc. and Xxxxxx International
Inc. Mr. Key, since 2003, has been the sole proprietor of Key Consulting, LLC, a
management and financial consulting business, and is the vice chairman and a
member of the advisory board of X.X. Xxxxxxx Enterprises, Inc., where he also
served as Chief Financial Officer from 2001 to 2006. Mr. Key served as the Chief
Financial Officer and Executive Vice President of Textron, Inc. from 1995 to
2001, as the Chief Financial Officer and Executive Vice President of ConAgra,
Inc. from 1992 to 1995, and as Managing Partner of Ernst & Young's New York
office from 1988 to 1992, after joining Ernst & Young in 1968. Mr. Key also
serves on the board of directors of 1-800-Contacts, Inc. and Xxxxxxxxx & Co.,
and is a trustee of the Rhode Island School of Design.
As part of the agreement, XXXX has agreed to abandon its previously announced
intent to nominate directors for election at the Company's 2006 annual meeting.
In addition, XXXX has agreed not to take certain actions for a one year period
and to support the slate of directors nominated for election by the Company's
board at the 2006 annual meeting of stockholders, subject to the terms of the
agreement which will be incorporated by reference on Form 8-K to be filed by the
Company this week.
ABOUT SITEL CORPORATION
SITEL is a leading global provider of outsourced customer support services. On
behalf of many of the world's leading organizations, SITEL designs and improves
customer contact models across its clients' customer acquisition, retention and
development cycles.
SITEL manages approximately two million customer interactions per day via the
telephone, e-mail, Internet and traditional mail. SITEL has approximately 39,000
employees in 90 global contact centers, utilizing more than 32 languages and
dialects to serve customers in 56 countries. SITEL is a leader in the contact
center industry. Please visit SITEL's website at XXX.XXXXX.XXX for further
information.
ABOUT XXXX PARTNERS LLC
XXXX Partners LLC is a private money management firm with offices in New York
and San Francisco and over $5 billion in assets.
FROM:
SITEL Corporation
0000 Xxxxx Xxxxxxxxxxxxx Xxxxx
Xxxxx, XX 00000
CONTACTS:
Xxxx Xxxx, Investor Relations
402-963-6810
