Exhibit 10.13
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement ("Agreement") is made
effective the 1st day of December, 1999 between SITEL CORPORATION, a Minnesota
corporation ("Company") and XXXXX X. XXXXX ("Executive"). This Agreement amends
and restates in its entirety the Employment Agreement dated effective May 11,
1995 between Company and Executive.
THE PARTIES AGREE AS FOLLOWS:
1. Employment and Duties. Company hereby employs Executive as its Chairman
of the Board and member of the Office of the Chairman throughout the remaining
term of this Agreement and agrees to cause Executive from time to time to be
elected or appointed to such corporate offices or positions. Executive accepts
such employment. 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,
overall responsibility for the development and implementation of Company's
business plans and strategies, and such other duties and responsibilities which
the Board of Directors of Company from time to time may reasonably assign to
Executive. Unless otherwise determined by agreement of Executive and the Board
of Directors of Company, Executive also shall serve in the same corporate
offices or positions with Company's subsidiaries (and Company's successor, in
the event of any corporate reorganization) throughout the term of this
Agreement, and shall have the same duties and responsibilities with respect to
such subsidiaries (and such successor) as he has with respect to Company, but
without additional compensation, and Company agrees to cause Executive from time
to time to be elected or appointed to such corporate offices or positions.
2. Term. The original term of this Agreement began June 1, 1995 and ended
May 31, 1998, but the term has continued without interruption for rolling
three-year periods pursuant to the following provision. Commencing on June 1,
1996, and on the same calendar date each year thereafter through and including
June 1, 2002, Executive's employment term under this Agreement has been
automatically extended, and shall continue to be automatically extended, by an
additional consecutive twelve (12) month period, unless sooner terminated in
accordance with this Agreement.
3. Work Efforts; Other Activities. During the term of this Agreement,
Executive shall devote substantially all of his work efforts to the business and
affairs of Company responsibilities assigned to him pursuant to this Agreement.
However, Executive may devote a reasonable amount of his time to civic,
community, or charitable activities and, with the prior approval of the Board of
Directors of Company, to serve as a director of other corporations and other
activities not expressly mentioned in this paragraph. Executive may invest his
personal assets as he deems appropriate so long as such investments do not
interfere with Executive's performance of the duties and responsibilities
assigned to him pursuant to this Agreement.
4. Place of Employment. The office of Executive shall be located in Omaha,
Nebraska during the term of this Agreement, and Executive will not be required
to relocate or transfer his office from the immediate vicinity of the Omaha,
Nebraska metropolitan area. Company shall furnish Executive with offices,
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 conveniently fulfill the duties of his
employment.
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5. Base Salary. For all services to be rendered by Executive pursuant to
this Agreement, Company agrees to pay Executive during the term of this
Agreement a base annual salary (the "Base Salary") of not less than the greater
of (a) the base salary established for Executive by Company's Compensation
Committee (the "Committee"); or (b) $250,000. The Base Salary shall be
increased, effective on the first day of each fiscal year during Executive's
employment (the "Adjustment Date") by an amount equal to the percentage increase
in the U.S. Department of Labor Consumer Price Index (All Items) for all Xxxxx
Xxxxxxxxx, X.X. Xxxx Xxxxxxx, 0000-0000 = 100 (the "Index") since June 1, 1995,
or the previous Adjustment Date, whichever is later. The adjustment shall be
determined no later than three (3) months after the Adjustment Date for which
the adjustment applies. At no time will the Base Salary, as adjusted, be
decreased by a decline of the Index. The Base Salary shall be paid in periodic
installments in accordance with Company's regular payroll practices.
6. Additional Compensation.
(a) Bonus. Within sixty (60) days prior to the commencement of
each fiscal year beginning in 1996 during the term of this Agreement, Executive
and the Committee shall mutually agree upon the criteria upon which a bonus for
Executive for such next fiscal year is to be based. A bonus shall be awarded to
Executive for each fiscal year in accordance with the mutually agreed criteria,
unless Executive and the Committee agree that the bonus shall be awarded on some
other basis in which case a bonus shall be awarded as such other basis as they
have mutually agreed. The Company shall pay such awarded bonus to Executive in
cash within thirty (30) days after it is awarded by the Committee (and no later
than ninety (90) days after the end of such fiscal year for which the bonus is
awarded) unless otherwise agreed to by Executive and Company in advance of the
award. It is expected but not required that the bonus shall be derived from the
annual bonus pool established by the Company for key management, supervisory and
administrative employees.
(b) Stock Option Plans. On June 1 of each year beginning in
1996 during the term of this Agreement (or, with respect to the final year of
this Agreement, upon the effective date of termination of Executive's employment
if such effective date is a date other than June 1) (the "Option Grant Date"),
Company through the Committee shall cause to be granted to Executive options to
purchase that number of shares of Company's voting common stock which is at
least equal to five percent (5%) of the aggregate number of shares for which
options for Company stock were granted since the last Option Grant Date (or,
with respect to the first year of this Agreement, since June 1, 1995) to
Company's employees and to Company's non-employee directors under any stock
option plans (including incentive stock option plans) of Company. The terms
(including price and exercise dates) of the options granted to Executive shall
be as determined by the Committee but shall be comparable to the terms upon
which options were generally granted to other employees of Company during the
applicable period, subject to any differences required under applicable tax laws
with respect to incentive stock options granted to Executive. In all events, the
options granted to Executive shall provide that Executive shall have at least
ninety (90) days following termination of Executive's employment under this
Agreement for any reason other than death, and that Executive's personal
representative or other legal representative shall have at least one (1) year
following Executive's death, to exercise any or all of the outstanding options
granted to Executive to the extent they were exercisable on the date of such
termination of employment or, if Executive's employment is terminated without
cause or constructively or by reason of Executive's death or disability, to
exercise any or all of such outstanding options in full. Executive and Company
acknowledge that Executive voluntarily waived his rights to receive option
grants pursuant to this Section 6(b) on June 1, 1997, June 1, 1998 and June 1,
1999.
(c) Benefit Plans. During the term of this Agreement, Company
shall provide to Executive and his eligible dependents at Company's expense
individual or group medical, hospital, dental, and long-term disability
insurance coverages and group life insurance coverage, in each case at least as
favorable as those coverages provided to the other senior executive officers of
Company or its subsidiaries. Executive shall also be entitled to participate in
such other benefit plans or programs which Company or its
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subsidiaries from time to time may make available to its employees generally or
to some or all of its other senior executive officers.
(d) Vacations and Holidays. During the term of this Agreement,
Executive shall be entitled to paid vacations, holidays and time off as are
consistent with past practice and custom for Company's senior executive
officers.
(e) Other Benefits and Allowances. During the term of this
Agreement, Executive shall, in addition, receive the benefits or allowances
described in the attached Schedule 6(e).
(f) Expenses. During the term of this Agreement, 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 his 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 six (6) months or for
more than one hundred eighty (180) days in the aggregate during any twelve (12)
month period (a "Disability Period"), then Company may terminate Executive's
employment under this Agreement.
(c) Cause. Company also may terminate Executive's employment
under this Agreement for cause; however, for purposes of this Agreement, "cause"
shall mean only (i) Executive's confession or conviction of theft, fraud,
embezzlement, or any other crime involving dishonesty, (ii) bad faith or
dishonest conduct on the part of Executive which is materially detrimental to
Company, or (iii) Executive's failure to comply with a lawful directive of the
Board of Directors of Company material to Executive's duties and Executive shall
fail to comply with such directive within thirty (30) days after his receipt of
a written notice from the Board of Directors of Company setting forth in
reasonable detail the particulars necessary for reasonable compliance.
Termination shall occur thirty (30) days after "cause" is established. In no
event shall the results of Company's operations or any business judgment made in
good faith by Executive constitute an independent basis for termination for
cause of Executive's employment under this Agreement.
(d) Voluntary Resignation. Executive may voluntarily resign
from Company's employ at any time upon at least thirty (30) days' prior written
notice of the effective date of such resignation.
(e) Constructive Termination. In the event of Company's
Constructive Termination of Executive's employment, Executive, at his election,
may remain employed or terminate his employment under protest, provided that he
has given written notice to the Board of Directors setting forth the manner in
which he has been constructively terminated and such Constructive Termination is
not timely corrected. In the event of a Constructive Termination, Executive
shall continue to receive all compensation and benefits provided for in this
Agreement, including an office, furnishings, equipment and secretarial services
of his selection of equal quality for the remainder of the term of this
Agreement. "Constructive Termination" for purposes hereof shall mean that (i)
Company has delegated one or more of Executive's duties described in paragraph
1, other than for cause as defined in Section 7(c), and Company fails to confirm
to Executive in writing the reinstatement of any such duty to Executive within
thirty (30) days after receipt by the Board of Directors of Executive's written
notice of protest; (ii) Company has, without Executive's consent, moved its
executive offices from the Omaha, Nebraska metropolitan area; or (iii)
Executive's Base Salary is decreased
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below its current level ($400,000) except only on an Adjustment Date in years
beginning no earlier than the year 2001 (but in any event as provided in Section
5 the Base Salary may never be decreased below $250,000).
8. Payments Upon Termination of Employment.
(a) Death or Disability. In the event Executive's employment
shall terminate by reason of death or disability as described in subparagraphs
7(a) or 7(b) above prior to the end of the term of this Agreement, Executive,
his legal representative or beneficiary, as the case may be, shall be entitled
to receive within thirty (30) days after the date of termination a cash amount
equal to eighteen (18) months of Executive's Base Salary, bonuses and other
compensation and benefits provided for in this Agreement (as such term has been
automatically extended pursuant to paragraph 2 above), which cash amount shall
in any event not be less than $1,120,000 or more than $1,300,000. Any
compensation otherwise payable under this subparagraph, however, shall be
reduced by an amount equal to the net payments Executive is entitled to receive
for the same period by reason of any Company paid disability benefit plans or
social security disability income. For purposes of computing the aggregate
bonuses payable under this subparagraph 8(a), such aggregate bonuses shall be
equal to the average of the aggregate bonuses earned by Executive with respect
to his preceding three (3) employment years which amount shall, in turn, be
multiplied by a factor of 1.5.
(b) Termination for Cause. In the event Executive's employment
shall be terminated "for cause" as described in subparagraph 7(c) prior to the
end of the term of this Agreement, Executive shall be entitled to receive within
thirty (30) days after the date of termination, a cash amount equal to his Base
Salary, bonuses and other compensation and benefits up to the date of
termination. Any bonuses for a partial year of employment shall be prorated
through date of termination.
(c) Involuntary Termination. If Company terminates Executive's
employment constructively as described in subparagraph 7(e) above, or if
Executive's employment shall terminate for any other reason not set forth in
subparagraphs 7(a)-(d) above, prior to the end of the term of this Agreement,
then (without limiting any other rights or claims which Executive may have
against Company or others), Executive shall be entitled to receive within thirty
(30) days after the date of termination a cash amount equal to Executive's Base
Salary, bonuses and other compensation and benefits provided for in this
Agreement from the date of such termination through the end of the then term of
this Agreement (as such term has been automatically extended pursuant to
paragraph 2 above), which cash amount shall in any event not be less than
$1,120,000 or more than $1,300,000. For purposes of computing the aggregate
bonuses payable under this subparagraph 8(c), such aggregate bonuses shall be
equal to the average of the aggregate bonuses earned by Executive with respect
to his preceding three (3) employment years which amount shall, in turn, be
multiplied by a factor equal to the number of whole and/or partial employment
years, inclusive of the then current employment year, remaining through the end
of the then term of this Agreement (as such term has been automatically extended
pursuant to paragraph 2 above). For example, if Executive's employment
terminates other than by reason of his death, disability, "cause" as defined in
Section 7(c), or voluntary resignation, on February 1, 2000, and if at the time
of his termination he was receiving a Base Salary of $400,000 per year, was
receiving other compensation and benefits valued at $25,000 per year, and had
received no bonuses during the preceding three (3) employment years, then the
cash amount payable to Executive pursuant to this Section 8(d) shall be the
$1,120,000 minimum, since ($400,000 + $25,000 + $0) = $425,000 x 2.33 (the
number of years remaining in the then term which still runs from February 2000
through May 2002) = $990,250.
The payments provided for above constitute the full amounts which Executive
shall be entitled to be paid under this Agreement in the event of termination of
his employment prior to the end of the term of this Agreement. The following
amounts shall be credited against, and shall therefore reduce, any cash amount
which becomes payable to Executive pursuant to this Section 8: (i) $100,000 per
year (prorated monthly for any partial years) of the Base Salary increase (from
$250,000 to $400,000) implemented effective for the pay
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period beginning on or about June 1, 1999 and paid to Executive prior to
termination of employment; and (ii) 100% of any discretionary cash bonuses paid
to Executive between May 11, 1999 and termination of employment. For example, if
Executive were entitled to be paid the cash amount described in the example
given in Section 8(d), and if Executive had been paid $8,333/month x 8 months =
$66,664 of the Base Salary increase and discretionary cash bonuses of $300,000,
then a total of $366,664 would be credited against the cash amount and the
balance of $1,120,000 - $366,664 = $753,336 would be payable to Executive
pursuant to Section 8(d).
9. Notice of Termination. Any termination of Executive's employment by
Company shall be communicated in a written Notice of Termination to Executive.
For purposes of this Agreement, a "Notice of Termination" shall mean a notice
from the Board of Directors which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated.
10. Confidentiality and Noncompetition Agreement. Executive, for the
consideration stated herein, has previously executed a "Noncompetition
Agreement" in the form attached as Schedule 10, which for avoidance of doubt is
hereby confirmed as remaining in full force and effect.
11. Registration Rights. If Executive's employment with Company shall
terminate for any reason other than voluntary resignation or final expiration of
the term of this Agreement, Executive may thereafter require Company to register
any or all of the unregistered shares of common stock that Executive (or his
assigns) may then own as of the date of such termination of employment in
accordance with the provisions of the previously executed "Registration Rights
Agreement" in the form attached as Schedule 11, which for avoidance of doubt is
hereby confirmed as remaining in full force and effect.
12. 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.
13. 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, addressed as follows:
If to Executive: Xxxxx X. Xxxxx
00 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
If to Company: SITEL Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: President
or to such other address as either party may have furnished to the other party
in writing in accordance with this paragraph. Such notices or other
communications shall be effective only upon receipt. 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.
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14. Merger, Etc. of Company. If during the term of this Agreement all or
substantially all of the assets and business of Company are disposed of by
merger, consolidation, sale of assets, or otherwise, then Company may elect
either:
(a) to assign this Agreement and all of Company's rights and
obligations under this Agreement to the acquiring or surviving corporation;
provided that such acquiring or surviving corporation shall assume in writing,
in a manner reasonably satisfactory to Executive, all of the obligations of
Company under this Agreement; and provided further that Company (in the event
and so long as it remains in business as an independent going enterprise) shall
remain liable for the performance of its obligations under this Agreement in the
event of an unjustified failure of the acquiring corporation to perform its
obligations under this Agreement; or
(b) in addition to its other rights of termination set forth in
paragraph 7, to terminate this Agreement upon at least thirty (30) days' prior
written notice to Executive and the payment to Executive of the compensation
provided for in subparagraph 8(c).
15. 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 officer of Company (other than
Executive) so authorized by the Board of Directors 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. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter of this Agreement have been made by
either party that are not expressly set forth in this Agreement.
16. Validity. The invalidity or unenforceability of any provision or
provisions 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.
17. 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.
18. Headings. The headings of the paragraphs 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.
19. 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 Nebraska.
20. Dispute Resolution. Any claim by Executive or Company arising from or
in connection with this Agreement, whether based on contract, tort, common law,
equity, statute, regulation, order, or otherwise, (a "Dispute") shall be
resolved as follows:
(a) Such Dispute shall be submitted to mandatory and binding
arbitration at the election of either Executive or Company (the "Disputing
Party"). Except as otherwise provided in this paragraph 20, the arbitration
shall be pursuant to the Commercial Arbitration Rules of the American
Arbitration Association (the "AAA").
(b) To initiate the arbitration, the Disputing Party shall
notify the other party in writing within thirty (30) days after the occurrence
of the event or events which give rise to the Dispute (the "Arbitration
Demand"), which notice shall (i) describe in reasonable detail the nature of the
Dispute, (ii) state
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the amount of any claim, (iii) specify the requested relief, and (iv) name an
arbitrator who (A) has been licensed to practice law in the U.S. for at least
ten (10) years, (B) has no relationship to either Executive or Company, and (C)
is experienced in representing clients in connection with employment-related
disputes (the "Basic Qualifications"). Within fifteen (15) days after the other
party's receipt of the Arbitration Demand, such other party shall serve on the
Disputing Party a written statement (i) answering the claims set forth in the
Arbitration Demand and including any affirmative defenses of such party, (ii)
asserting any counterclaim, which statement shall (A) describe in reasonable
detail the nature of the Dispute relating to the counterclaim, (B) state the
amount of the counterclaim, and (C) specify the requested relief, and (iii)
naming a second arbitrator satisfying the Basic Qualifications. Promptly, but in
any event within five (5) days thereafter, the two (2) arbitrators so named
shall select a third neutral arbitrator from a list provided by the AAA of
potential arbitrators who satisfy the Basic Qualifications and who have no past
or present relationship with the parties or their counsel, except as otherwise
disclosed in writing to and approved by the parties. The arbitration will be
heard by a panel of the three (3) arbitrators so chosen (the "Arbitration
Panel"), with the third arbitrator so chosen serving as the chairperson of the
Arbitration Panel. Decisions of a majority of the members of the Arbitration
Panel shall be determinative.
(c) The arbitration hearing shall be held in Omaha, Nebraska.
The Arbitration Panel is specifically authorized to render partial or full
summary judgment as provided for in the Federal Rules of Civil Procedure. The
Arbitration Panel will have no power or authority, under the Commercial
Arbitration Rules of the AAA or otherwise, to relieve the parties from their
agreement hereunder to arbitrate or otherwise to amend or disregard any
provision of this Agreement, including, without limitation, the provisions of
this paragraph 20.
(d) If an arbitrator refuses or is unable to proceed with
arbitration proceedings as called for by this paragraph 20, such arbitrator
shall be replaced by the party who selected such arbitrator or, if such
arbitrator was selected by the two (2) party-appointed arbitrators, by such two
(2) party-appointed arbitrators' selecting a new third arbitrator in accordance
with subparagraph 20(b), in either case within five (5) days after such
declining or withdrawing arbitrator's giving notice of refusal or inability to
proceed. Each such replacement arbitrator shall satisfy the Basic
Qualifications. If an arbitrator is replaced pursuant to this subparagraph 20(d)
after the arbitration hearing has commenced, then a rehearing shall take place
in accordance with the provisions of this subparagraph 20(d) and the Commercial
Arbitration Rules of the AAA.
(e) Within five (5) days after the closing of the arbitration
hearing, the Arbitration Panel shall prepare and distribute to the parties a
writing setting forth the Arbitration Panel's finding of facts and conclusions
of law relating to the Dispute, including the reason for the giving or denial of
any award. The findings and conclusions and the award, if any, shall be deemed
to be confidential information.
(f) The Arbitration Panel is instructed to schedule promptly
all discovery and other procedural steps and otherwise to assume case management
initiative and control to effect an efficient and expeditious resolution of the
Dispute. The Arbitration Panel is authorized to issue monetary sanctions against
either party if, upon a showing of good cause, such party is unreasonably
delaying the proceeding.
(g) Any award rendered by the Arbitration Panel will be final,
conclusive, and binding upon the parties, and any judgment on such award may be
entered and enforced in any court of competent jurisdiction.
(h) Each party will bear a pro rata share of all fees, costs,
and expenses of the arbitrators; and, notwithstanding any law to the contrary,
each party will bear all of the fees, costs, and expenses of its own attorneys,
experts, and witnesses. However, in connection with any judicial proceeding to
compel arbitration pursuant to this Agreement or to enforce any award rendered
by the Arbitration Panel, the prevailing party in such a proceeding will be
entitled to recover reasonable attorneys' fees and expenses incurred in
connection with such proceedings, in addition to any other relief to which such
party may be entitled.
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(i) Nothing contained in the preceding provisions of this
paragraph 20 shall be construed to prevent either party from seeking from a
court a temporary restraining order or other injunctive relief pending final
resolution of a Dispute pursuant to this paragraph 20.
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SIGNATURE PAGE TO
XXXXX X. XXXXX
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, Company and Executive have executed this Agreement.
SITEL CORPORATION, a Minnesota
corporation
By: /s/
------------------------------------
Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer
/s/
------------------------------------
XXXXX X. XXXXX
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SCHEDULE 6(e)
CAR
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Company shall provide Executive with a new luxury automobile not less often
than every three (3) years at least equal in quality to Executive's current
Company automobile.
COUNTRY CLUB MEMBERSHIPS
------------------------
Company shall pay all fees and expenses associated with membership in two
(2) country clubs, including golfing privileges, to the extent Company's payment
of the fees and expenses are tax deductible to Company.
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SCHEDULE 10
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
---------------------------------------------
(see attached)
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SITEL CORPORATION MANAGEMENT
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
THIS AGREEMENT is entered into this 11th day of May, 1995 by SITEL
CORPORATION, a Minnesota corporation (the "Company"), and XXXXX X. XXXXX
("Employee").
Company operates a direct sales and marketing business which creates and
directs large-scale telephone-based marketing programs for large corporate
clients, using inbound, outbound and call interactive telemarketing services.
Its operations and clients are throughout the United States, and are expected to
expand internationally. Employee is the Chief Executive Officer of Company. The
Company desires to continue Employee's employment and Employee desires to
continue his or her employment with the Company under the terms of an employment
agreement being entered into concurrently herewith (the "Employment Agreement").
Employee has direct personal contact and actually does business with
existing clients. Employee is also involved in obtaining new clients for the
Company, and is directly involved in targeting, meeting and negotiating with
prospective clients. The sales cycle to close business with a prospective client
generally takes from three months to one year. The parties recognize that by
reason of the length of time that it requires to develop and retain a
relationship between employees and existing and prospective clients, that it
will take a period of time for the Company to reestablish and retain the
goodwill between the Company and its client without interference from departing
employees.
In order to permit Employee to function as a member of management, the
Company will, from time to time, entrust Employee with highly sensitive,
confidential, and proprietary information belonging to the Company, including
but not limited to knowledge regarding the Company's business, future plans,
trade secrets, know-how, products, suppliers, clients, and employees, which
Company desires to protect. Additionally, the Company will, from time to time,
entrust confidential information of its clients, which was disclosed to the
Company pursuant to certain confidentiality agreements between the Company and
the respective client. Because of the difficulty of isolating the Company's and
protected clients' Confidential Information from other business activities which
Employee may consider pursuing on his or her own, some limitations must be
imposed on Employee's right to compete with the Company or use Confidential
Information of the Company or its clients.
In consideration of the foregoing recitals and the continued employment of
Employee under the terms of the Employment Agreement, the parties agree as
follows:
Section 1 - Nondisclosure of Confidential Information.
-----------------------------------------------------
(a) "Confidential Information" means information, not generally known, that
is proprietary to Company, including without limitation:
1) financial and accounting data, sales records, profit and loss
and other performance reports, pricing manuals, training
manuals, selling and pricing procedures, financing methods,
data processing and communication information, technical data,
securities information, agreements with insurers, banks, and
other service providers, trade secrets and know-how regarding
Company's business and its products and services;
2) personnel and salary information, including wages, bonuses,
commissions, and fringe benefits;
3) production and processing procedures, formulae and systems;
4) vendor and supplier information;
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5) buying practices, sources of supply for components, the
quality, prices and usage of components, information and
materials, manner of vendor payment, profit margins, expense
ratios, pricing, lead time and other information concerning
the Company's buying activities;
6) client lists and prospect lists including, without limitation,
names of contacts, products and services purchased, quantities
of products and services purchased, pricing including
discounts and add-ons, terms, credit histories, timing of
purchases, and payment histories, special demands of
particular clients, and current and anticipated requirements
of clients generally for products or services of the Company;
7) marketing information, including, without limitation,
research, development, testing and client surveys and
preferences regarding the Company's current and new products
or services, and specifications of any new products or
services under development by or for the Company;
8) business projections, strategic planning, marketing planning,
activity and practices, marketing systems and procedures,
pricing policies and practices, and inventory procedures and
systems; and
9) confidential information of the Company's clients.
(b) Employee agrees to receive, hold and treat all Confidential Information
received from or developed for the Company as confidential and secret, to use
such Confidential Information only for the advancement of the interests of the
Company, and to use Employee's best efforts to protect the secrecy of such
Confidential Information. Employee agrees that Confidential Information will be
disclosed by Employee only to those persons who are required to have such
knowledge in connection with their work for the Company and that Employee will
not directly or indirectly disclose any Confidential Information to others
without the prior written consent of the Company. Employee further agrees not to
use, directly or indirectly, any Confidential Information for the benefit of
Employee or any third party. Confidential Information does not include any of
the items in this Section which have become publicly known and made generally
available through no wrongful act of Employee or of others who were under
confidentiality obligations as to the item or items involved.
(c) Employee agrees that upon termination of his or her employment with the
Company, for any reason whatever, voluntary or involuntary, with or without
cause, he or she will immediately return to the Company all equipment, property,
funds, lists, forms, plans, documents or other written or computer material,
software or firmware, or copies of the same, belonging to the Company, or any of
its clients including all materials containing Confidential Information within
his possession, and he will not retain or use any Confidential Information.
Section 2 - Restrictions Against Competition.
--------------------------------------------
Employee acknowledges that because the Confidential Information made known
to or developed by Employee during his or her employment with the Company could
not practically be disregarded, the provision of similar employee services to a
competitor of the Company immediately following the termination of his or her
employment with the Company would inherently and inevitably result in the use of
Confidential Information of the Company by Employee, even if Employee were to
use his or her best efforts to avoid using such information. In order to prevent
the improper use of Confidential Information and the resulting unfair
competition and misappropriation of the Company's goodwill and other proprietary
interests, Employee agrees that while he or she is employed by the Company and,
unless such termination is without cause ("cause" having only the meaning
described in subparagraph 6(c) of the Employment Agreement), for a period of
eighteen (18) months after the termination of his employment other than without
cause, Employee
13
will not, directly or indirectly, whether as an employee, agent, consultant,
independent contractor, owner, partner or otherwise:
a) solicit any client of the Company, with whom he or she
actually did business and had personal contact during the term
of his or her employment with the Company, for the purpose of
obtaining the business of such client, in competition with the
Company;
b) advise or recommend to any other person that such person
solicit any client of the Company with whom he or she actually
did business and had personal contact during the term of his
or her employment with the Company, for the purpose of
obtaining the business of such client, in competition with the
Company;
c) solicit any prospective client of the Company, with whom he or
she actually did business and had personal contact during the
term of his or her employment with the Company, for the
purpose of obtaining the business of such client, in
competition with the Company;
d) advise or recommend to any other person that such person
solicit any prospective client of the Company with whom he or
she actually did business and had personal contact during the
term of his or her employment with the Company, for the
purpose of obtaining the business of such client, in
competition with the Company;
e) work for himself or herself or a competitor in an employee,
managerial, marketing or sales capacity, utilizing the
Confidential Information in competition with the Company in
the business of direct sales and marketing utilizing large-
scale telephone-based direct marketing programs for large
corporate clients, whether inbound, outbound or call
interactive, or providing other services then currently
provided by the Company or any prospective services being then
currently developed by the Company during his or her
employment with the Company or at the time of his or her
termination, the details of which Employee was privy to in
Employee's position with the Company; provided that
notwithstanding the foregoing, Employee shall thereafter still
be restricted from using the Confidential Information of the
Company pursuant to Section 1 hereof; or
f) employ, solicit for employment, or advise or recommend to any
other person that such person solicit for employment or
employ, any person employed by the Company.
The phrase "in competition with the Company" shall include Employee working
for a client of the Company, whether as an employee, agent, consultant,
independent contractor, owner, partner or otherwise, to provide telephone based
direct marketing services or other services then currently provided by the
Company or any prospective services being then currently developed by the
Company during Employee's employment with the Company or at the time of
Employee's termination, the details of which Employee was privy to in Employee's
position with the Company.
The phrase "prospective client" shall mean those businesses with whom
Employee has had substantial and extended actual and personal contact to develop
new business for the Company, including developing sales strategies, marketing
information, and proposals, and negotiating providing services to such
prospective clients, or about whom Employee has particular knowledge as a result
of receiving confidential or proprietary information of the Company about such
prospective client.
14
Employee agrees that the Company's contracts with its clients generally are
from one to three years in duration; that it will take a substantial amount of
time for another employee of the Company to develop good will with the Company's
clients serviced by Employee; the area of its business is national and expanding
internationally; it is reasonable to restrict Employee's competition during the
time period described above in such geographic area; and, that the restrictions
set forth in this Agreement (including, but not limited to, the period of
restriction, activity and geographic area set forth) are fair and reasonable and
are necessarily required for the protection of the interests of Company.
These covenants are independent of one another and are severable. In the
event any part of the covenants set forth in this section shall be held to be
invalid or unenforceable, the remaining parts thereof shall nevertheless
continue to be valid and enforceable as though the invalid and unenforceable
part had not been included herein. If any provisions of these covenants relating
to the time period, activity and/or area of restriction shall be declared by a
court of competent jurisdiction to exceed the maximum time periods, activities
or areas which such court deems reasonable and enforceable, such time period,
activity and/or area of restriction shall be deemed to become and thereafter be
the maximum time period, activity and/or area which such court deems reasonable
and enforceable.
Section 3 - Enforcement of Employee Restrictions.
------------------------------------------------
In signing this Agreement, Employee is fully aware of the restrictions that
this Agreement places upon Employee's future employment with someone other than
the Company. However, Employee understands and agrees that Employee's access to
the Confidential Information and clients of the Company makes such restrictions
both necessary and reasonable.
Employee agrees with the Company that if he shall violate or threaten to
violate any of the terms of this Agreement, then the Company shall be entitled
to injunctive relief; such remedy shall be in addition to and not in limitation
of any rights or remedies to which the Company is or may be entitled to at law
or in equity.
This Agreement is severable. In the event any part of the terms of this
Agreement shall be held to be invalid or unenforceable, the remaining parts
thereof shall nevertheless continue to be valid and enforceable as though the
invalid and unenforceable part had not been included herein.
Section 4 - Employment Situation.
--------------------------------
Employee and Company are concurrently entering into the Employment
Agreement, which agreement constitutes consideration to Employee for this
agreement.
Employee's employment with the Company is subject to the Company's standard
personnel policies, procedures, guidelines, and practices as they may be amended
from time to time. In the event of a conflict between the provisions of such
policies, procedures, guidelines and practices and the provisions of this
Agreement, the provisions of this Agreement shall control.
Section 5 - Survivability.
-------------------------
The provisions of Section 1 of this Agreement shall survive the termination
of Employee's employment, even if such termination constitutes a wrongful
termination of Employee's employment. The provisions of Section 2 of this
Agreement shall survive the termination of Employee's employment, unless Company
has terminated Employee's employment without cause ("cause" having only the
meaning described in subparagraph 6(c) of the Employment Agreement).
15
Section 6 - Attorney Review.
---------------------------
EMPLOYEE IS ADVISED AND ENCOURAGED TO REVIEW THIS AGREEMENT WITH EMPLOYEE'S
PRIVATE ATTORNEY BEFORE SIGNING IT. TO THE EXTENT, IF ANY, THAT EMPLOYEE
DESIRED, EMPLOYEE HAS TAKEN ADVANTAGE OF THIS RIGHT. EMPLOYEE HAS CAREFULLY READ
AND FULLY UNDERSTAND ALL OF THE PROVISIONS OF THIS AGREEMENT AND IS VOLUNTARILY
ENTERING INTO THIS AGREEMENT.
IF EMPLOYEE HAD THE ADVICE OF AN ATTORNEY IN REVIEWING THIS AGREEMENT,
EMPLOYEE HAD HIS OR HER ATTORNEY SIGN THE AGREEMENT IN THE SPACE INDICATED
EMPLOYEE'S ATTORNEY HAS REVIEWED THE AGREEMENT WITH EMPLOYEE. IF EMPLOYEE CHOOSE
NOT TO HAVE AN ATTORNEY REVIEW THIS AGREEMENT EMPLOYEE HAS SO INDICATED THAT IN
THE ATTORNEY REVIEW SPACE BELOW, BY WRITING AND INITIALING "DECLINED TO USE
ATTORNEY".
Section 7 - Miscellaneous.
-------------------------
This writing constitutes the entire agreement between the parties hereto
and supersedes any prior understanding or agreements among them respecting the
subject matter. There are no extraneous representations, arrangements,
understandings, or agreements, oral or written, among the parties hereto, except
those fully expressed herein. No amendments or modifications to the terms of
this Agreement shall be made unless made in writing and signed by all the
parties hereto. The failure of either party to enforce at any time any of the
provisions of this Agreement shall not be construed as a waiver of such
provisions or of the right of such party thereafter to enforce any such
provisions. The existence of any claim or cause of action by Employee against
the Company, whether based upon this Agreement or otherwise, shall not
constitute a defense to the enforcement of this agreement by the Company. This
Agreement is severable. In the event any part of the terms of this Agreement
shall be held to be invalid or unenforceable, the remaining parts thereof shall
nevertheless continue to be valid and enforceable as though the invalid and
unenforceable part had not been included herein. This Agreement shall be
construed and governed in accordance with the substantive laws of the State of
Nebraska. This Agreement shall be binding upon and inure to the benefit of the
parties, their heirs, successors and assigns.
16
SIGNATURE PAGE
TO
SITEL CORPORATION MANAGEMENT
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
SITEL CORPORATION
By: /s/ /s/
--------------------------------- -----------------------------
Xxxxxxx X. Xxxxx, President XXXXX X. XXXXX
Reviewed:
------------------------------------- -----------------------------
Attorney for Employee Date:
(IF EMPLOYEE CHOOSES NOT TO HAVE AN ATTORNEY REVIEW THIS AGREEMENT, EMPLOYEE
WILL WRITE AND INITIAL "DECLINED TO USE ATTORNEY" IN THE SPACE ABOVE.)
17
SCHEDULE 11
REGISTRATION RIGHTS AGREEMENT
-----------------------------
(see attached)
18
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Registration Rights Agreement is entered into as of the 11th day of
May, 1995, by and among SITEL CORPORATION, a Minnesota corporation, its
successors and assigns (the "Company"), and XXXXX X. XXXXX, Chairman of the
Board and Chief Executive Officer (the "Holder").
WHEREAS, the Company and Holder have entered into an Employment Agreement
as of this same date (the "Employment Agreement") and, as partial consideration
therefor, the Company has agreed to provide Holder certain demand and piggyback
registration rights with respect to Holder's stock in Company, which rights may
be exercised by Holder following certain events.
THE PARTIES AGREE AS FOLLOWS:
ARTICLE I
REGISTRATION RIGHTS
-------------------
Section 1.01 Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(b) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(c) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(d) "Shares" means any of the shares of Common Stock of the
Company currently held or hereafter acquired from time to time by the Holder,
including but not limited to the shares acquired pursuant to an incentive stock
option plan, up to ninety (90) days following his date of termination of
employment with the Company.
(e) "Registrable Securities" means any of the following shares
which have not been sold to the public or which have not lost their registration
rights as provided herein: (i) the Shares and (ii) any shares of Common Stock of
the Company, and any securities of the Company or any other corporation, issued
as a dividend or other distribution with respect to or in replacement of or
exchange for the Shares.
(f) The terms "register", "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement.
(g) "Registration Expenses" shall mean all expenses incurred
by the Company in complying with Article I hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses and the expense of any special audits incident to or required by
any such registration, but excluding the compensation of regular employees of
the Company which shall be paid in any event by the Company and excluding the
fees and expenses of legal counsel for the Holder.
(h) "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale of the Registrable Securities and
all fees and expenses of legal counsel for the Holder.
19
(i) "Triggering Event" shall mean the termination of Holder's
employment with Company for any reason except Holder's voluntary resignation or
the final expiration on or after the year 2003 of the term (including renewals)
of the Employment Agreement.
Section 1.02 Demand Registration Rights.
(a) Request for Registration. If within ninety (90) days after
the date of the Triggering Event the Company receives a written request from
Holder that the Company effect a registration with respect to all or a part of
the Registrable Securities of Holder (provided that if less than 25% of the
Registrable Securities of Holder are to be registered such securities shall have
an aggregate proposed offering price to the public of at least $500,000), the
Company will as soon as practicable thereafter use its diligent best efforts to
effect all such registrations, qualifications, or compliances (including without
limitation, the execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable requirements or regulations) as
may be so requested and as would permit or facilitate the sale and distribution
of all or such portion of such Registrable Securities as are specified in such
request, provided that the Company shall not be obligated to take any action to
effect any such registration, qualification or compliance pursuant to this
Section 1.02 in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act.
Subject to the foregoing, the Company shall file a
registration statement as soon as practicable after receipt of the request of
the Holder but in any event within sixty (60) days of receipt of such request
provided however, that if the Company shall furnish to the Holder a certificate
signed by the then Chairman of the Board of the Company stating that in the good
faith judgment of the Board of Directors of the Company it would be seriously
detrimental to the Company and its shareholders for such registration statement
to be filed on or before the date filing would be required and it is therefore
essential to defer the filing of such registration statement, the Company shall
have the right to defer such filing for a period of not more than one hundred
twenty (120) days after receipt of the request of the Holder.
(b) Underwriting. If the Holder intends to distribute the
Registrable Securities covered by its request by means of an underwriting, it
shall so advise the Company as a part of its request made pursuant to this
Section 1.02. The Company shall (together with the Holder) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Holder.
If the underwriter has not limited the number of Registrable
Securities to be underwritten, the Company may include securities for its own
account in such registration if the Holder so agrees.
Section 1.03 Piggyback Registration Rights.
(a) Notice of Proposed Registration. If at any time or from
time to time on or after a Triggering Event the Company shall determine to
register any of its Common Stock, other than (i) a registration relating solely
to employee benefit plans on Form S-8 or similar forms which may be promulgated
in the future, or (ii) a registration on Form S-4 or similar forms which may be
promulgated in the future relating solely to a Commission Rule 145 transaction,
the Company will:
(i) promptly give the Holder written notice thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance). and in
any underwriting involved therein, all the Registrable
Securities specified in a written request or requests, made
within thirty (30) days after receipt of such written notice
from the Company, by the Holder, except as set forth in
Section 1.03(b).
20
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holder as a part of the written notice given
pursuant to Section 1.03(a)(i). In such event the right of the Holder to
registration pursuant to this Section 1.03 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. The
Holder shall in such case (together with the Company) enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting by the Company. Notwithstanding any other provision of this
Section 1.03, if the underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the underwriter may limit
the amount of securities to be included in the registration and underwriting by
the Holder; provided however, the number of Registrable Securities to be
included in such registration and underwriting shall not be reduced to less than
50% of the securities sought to be included therein without the prior written
consent of the Holder. Notwithstanding the above, Holder and his assigns,
cumulatively, shall not be entitled to require the registration of Registrable
Shares to any greater extent, percentage-wise than the extent to which the stock
of any other employee of the Company shall be included in the registration (not
including Form S-8 or similar employee plan registrations). If the Holder
disapproves of the terms of any such underwriting, it may elect to withdraw
therefrom by written notice to the Company and the underwriter. Any Registrable
Securities excluded or withdrawn from such underwriting shall be excluded from
such registration.
Section 1.04 Expenses of Registration. All Registration Expenses incurred
in connection with any registration, qualification or compliance pursuant to
Sections 1.02 and 1.03 shall be borne by the Company. Unless otherwise stated,
all other expenses and all Selling Expenses relating to securities registered by
the Holder shall be borne by the Holder.
Section 1.05 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will, upon request, inform the Holder as to the status of each such
registration, qualification and compliance. At its expense the Company will:
(a) keep such registration, and any qualification or
compliance under state securities laws which the Company determines to obtain,
effective for a period of one hundred eighty (180) days or until the Holder has
completed the distribution described in the registration statement relating
thereto, whichever first occurs; and
(b) furnish such number of prospectuses and other documents
incident thereto as the Holder or any underwriter from time to time may
reasonably request.
Section 1.06 Indemnification.
(a) The Company will indemnify the Holder, his legal counsel
and accountants, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages and liabilities (or action in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereof, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse the Holder, his
legal counsel and accountants, and each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, provided that the Company will not be
liable in any such case to the extent that any such claim, loss,
21
damage, liability or expense arises out of or is based on any untrue statement
or omission, made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by or on behalf of the
Holder or underwriter and stated to be specifically for use therein.
(b) The Holder will, if Registrable Securities held by the
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, and each
of its directors, officers, legal counsel and accountants, each underwriter, if
any, of the Company's securities covered by such a registration statement, and
each person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, such directors, officers, legal
counsel, accountants, persons, underwriters or control persons for any legal or
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged omission)
is made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by an instrument duly executed by or on behalf of the Holder and
stated to be specifically for use therein.
(c) Each party entitled to indemnification under this Section
1.06 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to provide notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement, unless such failure
is prejudicial to the Indemnifying Party in defending such claim or litigation.
No Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 1.06
is held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party thereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall be controlling.
22
Section 1.07 Lockup Agreement. In consideration for the Company agreeing to
its obligations under this Article I, the Holder agrees in connection with any
firmly underwritten public offering of the Company's Common Stock, upon request
of the Company or the underwriters managing such offering, not to sell, make any
short sale of, loan, grant any option for the purchase of, or otherwise dispose
of any Registrable Securities (other than those included in the registration)
without the prior written consent of the Company or such underwriters, as the
case may be, for such period of time (not to exceed 30 days) from the effective
date of such registration as the Company or the underwriters may specify;
provided, however, that the Holder shall have no obligation to enter into the
agreement described herein unless all executive officers and directors of the
Company and all other holders of more than 5% of the Company's outstanding
Common Stock enter into similar agreements.
Section 1.08 Information by Holder. The Holder shall furnish to the Company
such information regarding the Holder and the distribution of proceeds by the
Holder as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
Sections 1.02 or 1.03 of this Agreement.
Section 1.09 Rule 144 Reporting. With a view to making available to the
Holder the benefits of certain rules and regulations of the Commission which at
any time permit the sale of the Registrable Securities to the public without
registration, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) so long as the Holder owns any unregistered Registrable
Securities, furnish to such Holder forthwith upon request a written statement by
the Company as to its compliance with the reporting requirements of said Rule
144 and of the Securities Act and Exchange Act, a copy of the most recent annual
or quarterly report of the Company and such other reports and documents of the
Company as the Holder may reasonably request in availing Holder of any rule or
regulation of the Commission allowing the sale of any such securities without
registration.
Section 1.10 Transfer of Registration Rights. The rights to cause the
Company to register the Registrable Securities granted to the Holder by the
Company under Sections 1.02 and 1.03 may be assigned by the Holder to not more
than five transferees or assignees of any of the Holder's Registrable
Securities, provided that the Company is given written notice by the Holder at
the time of or within a reasonable time after said transfer, stating the name
and address of said transferee or assignee and identifying the securities with
respect to which such registration rights are being assigned, provided that no
such assignment shall increase the number of registrations that the Company may
be required to effect under this Agreement.
ARTICLE II
MISCELLANEOUS
-------------
Section 2.01 Amendment. Any modification, amendment, or waiver of this
Agreement or any provision hereof shall be effective only if in writing and
executed by the Holder and the Company.
Section 2.02 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Nebraska without regard to its conflicts of
laws principles.
23
Section 2.03 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
Section 2.04 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall either be delivered personally
or by telegram or be mailed by first class mail, postage prepaid, addressed to
the Holder at 00 Xxxxxx Xxxx, Xxxxxx, XX 00000 or to the Company at 00000 Xxxxx
Xxxxxx, Xxxxx 000, Xxxxx, XX 00000, or at such other address as either party
shall have furnished to the other party in writing. All notices shall be deemed
effective (a) when received, if personally delivered or sent by telegram, or (b)
three days after deposit in the mail, if mailed as set forth above.
Section 2.05 Severability. If any provision of this Agreement shall be
judicially determined to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired thereby.
Section 2.06 Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to other
subject matter hereof.
Section 2.07 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
24
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
BETWEEN SITEL CORPORATION AND XXXXX X. XXXXX
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective representatives thereunto duly authorized as of
the date first above written.
SITEL CORPORATION
By: /s/
---------------------------
Xxxxxxx X. Xxxxx, President
/s/
---------------------------
XXXXX X. XXXXX
25
