-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, G7vFrWBcMGRFtlv2KRv8trI+LnaJXD0kdBHOuZpCxxWaF9pd+rmrMkUmK4BuQiHF b2rK0+GJnqylzyLobHeKgQ== 0000902561-06-000188.txt : 20061023 0000902561-06-000188.hdr.sgml : 20061023 20061023172402 ACCESSION NUMBER: 0000902561-06-000188 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20061023 DATE AS OF CHANGE: 20061023 GROUP MEMBERS: CLIENTLOGIC CORPORATION GROUP MEMBERS: GERALD W. SCHWARTZ GROUP MEMBERS: ONEX CLIENTLOGIC HOLDINGS LLC GROUP MEMBERS: ONEX CORPORATION GROUP MEMBERS: STAGECOACH ACQUISITION CORPORATION SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SITEL CORP CENTRAL INDEX KEY: 0000943820 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 470684333 STATE OF INCORPORATION: MN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-44769 FILM NUMBER: 061158465 BUSINESS ADDRESS: STREET 1: 7277 WORLD COMMUNICATIONS DR CITY: OMAHA STATE: NE ZIP: 68122 BUSINESS PHONE: 4106595700 MAIL ADDRESS: STREET 1: 7277 WORLD COMMUNICATIONS DR CITY: OMAHA STATE: NE ZIP: 68122 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CLIENTLOGIC CORP CENTRAL INDEX KEY: 0001104400 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MANAGEMENT CONSULTING SERVICES [8742] FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 2 AMERICAN CENTER STREET 2: 3102 WEST END AVENUE SUITE 1000 CITY: NASHVILLE STATE: TN ZIP: 37203 BUSINESS PHONE: 6153017100 MAIL ADDRESS: STREET 1: 2 AMERICAN CENTER STREET 2: 3102 WEST END AVENUE SUITE 1000 CITY: NASHVILLE STATE: TN ZIP: 37203 SC 13D 1 formsc13d_sc13d102006.htm SITEL CORPORATION OCTOBER 12,2006

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

 

SITEL Corporation

(Name of Issuer)

 

Common Stock, par value $0.001 per share

(Title of Class of Securities)

82980K 10 7

(CUSIP Number)

Terrence Mitchell Leve, Sr.

Chief Legal Officer & Corporate Secretary

ClientLogic Corporation

3102 West End Avenue, Suite 1000

Nashville, Tennessee 37203

Telephone: (615) 301-7325

 

with a copy to:

 

Jin Kim

Mayer, Brown, Rowe & Maw LLP

1675 Broadway

New York, New York 10019

 

(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)

October 12, 2006

(Date of Event which Requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

CUSIP NO.: 82980K 10 7

13D

1

NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

 

 

Stagecoach Acquisition Corporation

 

 

 

 

 

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a)   o

 

 

 

 

 

(b) x

 

 

 

3

SEC USE ONLY

 

 

 

4

SOURCE OF FUNDS

OO

 

 

 

5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)

 

o

 

 

 

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

 

 

 

Minnesota

 

 

 

 

 

 

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7

SOLE VOTING POWER

-0-

 

 

8

SHARED VOTING POWER

14,879,349 shares (1)

 

 

9

SOLE DISPOSITIVE POWER

-0-

 

 

10

SHARED DISPOSITIVE POWER

-0-

 

 

 

 

 

 

 

 

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

 

 

14,879,349 shares

 

 

 

 

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES

 

 

CERTAIN SHARES

o

 

 

 

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

 

 

19.99% (1)

 

 

 

 

14

TYPE OF REPORTING PERSON

 

 

 

CO

 

 

 

 

 

 

 

 

 

 

(1)  An aggregate of 14,879,349 shares of SITEL Corporation, a Minnesota corporation (“Sitel”), common stock are subject to three separate Voting Agreements, each dated October 12, 2006 (the “Voting Agreements”), by and among ClientLogic Corporation, a Delaware corporation (“ClientLogic”), Stagecoach Acquisition Corporation, a Minnesota corporation and a wholly owned subsidiary of ClientLogic (“Stagecoach”) and James F. Lynch, Private Equity Investors IV, L.P. and Jana Piranha Master Fund, Ltd., the holders of such shares (collectively, the “Voting Holders”) (discussed in Items 3 and 4 below). Based upon 74,400,631 shares of Sitel common stock outstanding as of the close of business on October 6, 2006 (as represented by Sitel in the Agreement and Plan of Merger discussed in Items 3 and 4 below), the shares subject to the Voting Agreements represent approximately 19.99% of the outstanding Sitel common stock. Beneficial ownership of the shares of common stock referred to herein is being reported solely because the reporting person may be deemed to have beneficial ownership of such shares as a result of the Voting Agreements described above. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by Stagecoach that it is the beneficial owner of any of the common stock referred to herein for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Act”), or for any other purpose, and such beneficial ownership is expressly disclaimed. In addition, Stagecoach expressly disclaims membership in a “group,” as defined in Section 13(d) of the Act, with the Voting Holders.

 

2 of 14

 

1

NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

 

ClientLogic Corporation

I.R.S. Identification No. 16-1556476

 

 

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a)   o

 

 

 

 

(b) x

 

3

SEC USE ONLY

 

4

SOURCE OF FUNDS

OO

 

5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)

 

o

 

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

 

 

Delaware

 

 

 

 

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7

SOLE VOTING POWER

-0-

 

8

SHARED VOTING POWER

14,879,349 shares (2)

 

9

SOLE DISPOSITIVE POWER

-0-

 

10

SHARED DISPOSITIVE POWER

-0-

 

 

 

 

 

 

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

 

14,879,349 shares

 

 

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES

 

CERTAIN SHARES

o

 

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

 

19.99% (2)

 

 

14

TYPE OF REPORTING PERSON

 

 

CO

 

 

 

 

 

 

 

 

(2) See footnote (1) above. Beneficial ownership of the shares of common stock referred to herein is being reported solely because the reporting person may be deemed to have beneficial ownership of such shares as a result of the Voting Agreements described in footnote (1) above. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by ClientLogic that it is the beneficial owner of any of the common stock referred to herein for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership is expressly disclaimed. In addition, ClientLogic expressly disclaims membership in a “group,” as defined in Section 13(d) of the Act, with the Voting Holders.

 

3 of 14

 

 

1

NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

 

Onex ClientLogic Holdings LLC

I.R.S. Identification No. 52-2196364

 

 

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a)   o

 

 

 

 

(b) x

 

3

SEC USE ONLY

 

4

SOURCE OF FUNDS

OO

 

5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)

 

o

 

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

 

 

Delaware

 

 

 

 

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7

SOLE VOTING POWER

-0-

 

8

SHARED VOTING POWER

14,879,349 shares (3)

 

9

SOLE DISPOSITIVE POWER

-0-

 

10

SHARED DISPOSITIVE POWER

-0-

 

 

 

 

 

 

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

 

14,879,349 shares

 

 

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES

 

CERTAIN SHARES

o

 

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

 

19.99% (3)

 

 

14

TYPE OF REPORTING PERSON

 

 

OO

 

 

 

 

 

 

 

(3) See footnote (1) above. Beneficial ownership of the shares of common stock referred to herein is being reported solely because the reporting person may be deemed to have beneficial ownership of such shares as a result of the Voting Agreements described in footnote (1) above. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by Onex ClientLogic Holdings LLC that it is the beneficial owner of any of the common stock referred to herein for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership is expressly disclaimed. In addition, by Onex ClientLogic Holdings LLC expressly disclaims membership in a “group,” as defined in Section 13(d) of the Act, with the Voting Holders.

 

4 of 14

 

 

1

NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

 

Onex Corporation

I.R.S. Identification No.

 

 

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a)   o

 

 

 

 

(b) x

 

3

SEC USE ONLY

 

4

SOURCE OF FUNDS

OO

 

5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)

 

o

 

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

 

 

Delaware

 

 

 

 

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7

SOLE VOTING POWER

-0-

 

8

SHARED VOTING POWER

14,879,349 shares (4)

 

9

SOLE DISPOSITIVE POWER

-0-

 

10

SHARED DISPOSITIVE POWER

-0-

 

 

 

 

 

 

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

 

14,879,349 shares

 

 

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES

 

CERTAIN SHARES

o

 

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

 

19.99%(4)

 

 

14

TYPE OF REPORTING PERSON

 

 

CO

 

 

 

 

 

 

 

(4) See footnote (1) above. Beneficial ownership of the shares of common stock referred to herein is being reported solely because the reporting person may be deemed to have beneficial ownership of such shares as a result of the Voting Agreements described in footnote (1) above. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by Onex Corporation that it is the beneficial owner of any of the common stock referred to herein for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership is expressly disclaimed. In addition, by Onex Corporation expressly disclaims membership in a “group,” as defined in Section 13(d) of the Act, with the Voting Holders.

 

 

5 of 14

 

 

1

NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

 

Gerald W. Schwartz

 

 

 

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a)   o

 

 

 

 

(b) x

 

3

SEC USE ONLY

 

4

SOURCE OF FUNDS

OO

 

5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)

 

o

 

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

 

 

Delaware

 

 

 

 

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7

SOLE VOTING POWER

-0-

 

8

SHARED VOTING POWER

14,879,349 shares (5)

 

9

SOLE DISPOSITIVE POWER

-0-

 

10

SHARED DISPOSITIVE POWER

-0-

 

 

 

 

 

 

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

 

14,879,349 shares

 

 

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES

 

CERTAIN SHARES

o

 

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

 

19.99% (5)

 

 

14

TYPE OF REPORTING PERSON

 

 

IN

 

 

 

 

 

 

 

 

(5)  See footnote (1) above. Beneficial ownership of the shares of common stock referred to herein is being reported solely because the reporting person may be deemed to have beneficial ownership of such shares as a result of the Voting Agreements described in footnote (1) above. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by Gerald Schwartz that he is the beneficial owner of any of the common stock referred to herein for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership is expressly disclaimed. In addition, Gerald Schwartz expressly disclaims membership in a “group,” as defined in Section 13(d) of the Act, with the Voting Holders.

 

 

6 of 14

 

Item 1. Security and Issuer

This Statement on Schedule 13D (this “Statement”) relates to shares of common stock, par value $0.001 per share (the “Common Stock”), of Sitel, which has its principal executive office at 7277 World Communications Drive, Omaha, Nebraska 68122.

 

Item 2. Identity and Background

(a), (b), (c) and (f) This statement is being filed jointly, pursuant to Rule 13d-1(k)(1) under the Act, as separate persons and not as members of a group, by ClientLogic, Stagecoach, Onex ClientLogic Holdings LLC (“ClientLogic Holdings”), Onex Corporation (“Onex”), and Gerald W. Schwartz (collectively, the “Reporting Persons”).

 

(i)          Stagecoach, a Minnesota corporation, is a wholly-owned subsidiary of ClientLogic. Stagecoach was formed to effect the transactions described in Item 4 below and has not engaged in any activities other than those incident to its formation and such transactions. Stagecoach’s principal business address is 3102 West End Avenue, Suite 1000, Nashville, Tennessee 37203.

 

(ii)         ClientLogic, a Delaware corporation, beneficially owns all of the capital stock of Stagecoach. ClientLogic’s principal business is to provide fully integrated customer care, fulfillment and back office processing services. ClientLogic’s principal business address is 3102 West End Avenue, Suite 1000, Nashville, Tennessee 37203.

 

(iii)        ClientLogic Holdings, a Delaware limited liability company, beneficially owns a majority of the voting stock of ClientLogic. The principal business of ClientLogic Holdings is to hold the stock of ClientLogic. The principal business address of ClientLogic Holdings is 421 Leader Street, Marion, Ohio 43302.

 

(iv)        Onex Corporation, a corporation incorporated under the Business Corporations Act (Ontario), beneficially owns a majority of the membership interests of ClientLogic Holdings. Onex is a diversified corporation with operations in the services, manufacturing and technology industries. The principal business address of Onex is 161 Bay Street, P.O. Box 700, Toronto, Ontario M5J 2S1.

 

(v)         Gerald Schwartz, a Canadian citizen, beneficially owns a majority of the voting stock of Onex. The principal occupation of Mr. Schwartz is the Chairman of the Board, President and Chief Executive Officer of Onex. The address for the principal business office of Mr. Schwartz is 161 Bay Street, P.O. Box 700, Toronto, Ontario M5J 2S1.          

 

The name, citizenship, business address, present principal occupation or employment, and the name and principal business and address of any corporation or other organization in which such employment is conducted, of each of the directors and executive officers of ClientLogic, Stagecoach, ClientLogic Holdings and Onex are as set forth in Annex I hereto and incorporated herein by reference.

 

(d) and (e) During the last five years, none of the Reporting Persons, and, to the best knowledge of the Reporting Persons, none of the individuals listed in Annex I, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding any violation with respect to such laws.

 

Item 3. Source and Amount of Funds or Other Consideration

As an inducement for ClientLogic to enter into the Agreement and Plan of Merger described in Item 4 and in consideration thereof, each of the Voting Holders entered into the Voting Agreements. ClientLogic did not pay additional consideration to the Voting Holders in connection with the execution and delivery of the Voting Agreements. For a description of the Voting Agreements, see Item 4 below, which description is incorporated herein by reference in response to this Item 3.

 

 

7 of 14

 

Copies of the Voting Agreements are filed as Exhibits 99.3, 99.4, and 99.5 and are incorporated herein by reference.

Item 4. Purpose of Transaction

The response to Item 3 is herein incorporated by reference.

Sitel and ClientLogic have entered into a definitive Agreement and Plan of Merger, dated as of October 12, 2006 (the “Merger Agreement”), for Sitel to be acquired in an all-cash transaction valued at $4.05 per share of Common Stock. As an inducement for ClientLogic to enter into the Merger Agreement with Sitel, the Voting Holders have entered into the Voting Agreements, with ClientLogic and Stagecoach. Subject to the terms and conditions thereof, the Merger Agreement provides for the merger (the “Merger”) of Stagecoach with and into Sitel, whereupon the separate existence of Stagecoach will cease and Sitel will continue as the surviving corporation. At the effective time of the Merger, each outstanding share of Common Stock (other than shares of Common Stock that are held by Sitel as treasury stock or owned by Sitel, any of its subsidiaries, ClientLogic or Stagecoach and other than shares of Common Stock that are held by stockholders, if any, who properly exercise their dissenters’ rights under Minnesota law) will be converted into the right to receive $4.05 in cash, without interest.

The Merger Agreement has been approved by the board of directors of each of Sitel and ClientLogic.

Pursuant to the Voting Agreements, the Voting Holders, have agreed with respect to 14,879,349 shares of Common Stock beneficially owned by them, which represents approximately 19.99% of the issued and outstanding shares of Common Stock, among other things, (a) to consent in writing to the adoption of the Merger Agreement and the approval of the Merger in respect of all of the shares of Common Stock beneficially owned by each such holder and (b) to vote all shares of Common Stock beneficially owned by each such holder and subject to the Voting Agreements: (i) in favor of the Merger and the adoption of the Merger Agreement and the transactions contemplated thereby and (ii) against any action, agreement, transaction (other than the Merger Agreement or the transactions contemplated thereby) or proposal (including any Acquisition Proposal, as such term is defined in the Merger Agreement) that could reasonably be expected to impede, interfere, delay, discourage or adversely affect the Merger Agreement.

Each Voting Holder has also agreed not to: (i) make any sales, gifts, transfers, pledges, or other dispositions of the Common Stock subject to the Voting Agreements (including any shares of the Common Stock subject to the Voting Agreements issued upon the exercise of Sitel stock options), (ii) deposit any of the Common Stock subject to the Voting Agreements (including any shares of the Common Stock subject to the Voting Agreements issued upon the exercise of Sitel stock options) into a voting trust or enter into any voting agreement or arrangement or understanding with respect thereto, (iii) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition, sale, assignment transfer or other disposition of the Common Stock subject to the Voting Agreements (including any shares of the Common Stock subject to the Voting Agreements issued upon the exercise of Sitel stock options) or (iv) take any action that could make any of its representations or warranties contained in the Voting Agreements untrue or incorrect.

The purpose of the Voting Agreements is to enable ClientLogic and Sitel to consummate the transactions contemplated by the Merger Agreement.

Consummation of the Merger is subject to receipt by ClientLogic of the proceeds of the debt financing commitment and various other customary conditions, including, among others, (i) approval of the Merger by Sitel’s stockholders, (ii) the absence of any law or regulation that prohibits the consummation of the Merger or governmental action seeking to make the Merger illegal or cause the Merger to be rescinded, (iii) expiration or termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and

 

8 of 14

 

certain other antitrust waiting periods, (iv) subject to certain exceptions, receipt of any government consents and completion of any government filings required to permit the Merger and (v) the absence of any material adverse change with respect to the Sitel’s business. Each party’s obligation to close is also subject to the accuracy of representations and warranties of and compliance with covenants by the other party to the Merger Agreement, in each case, as set forth in the Merger Agreement. The parties expect to close the transaction by early 2007.

Upon the consummation of the Merger, the directors and officers of Stagecoach immediately prior to the effective time of the Merger shall be the directors and officers of the surviving corporation, until their respective successors are duly elected or appointed and qualified in accordance with applicable law.

At the effective time of the Merger, the articles of incorporation and bylaws of the Stagecoach shall be the articles of incorporation and bylaws of the surviving corporation until amended in accordance with applicable law.

If the Merger is consummated as planned, ClientLogic anticipates that Sitel will become a wholly owned subsidiary of ClientLogic and ClientLogic will seek to cause the Common Stock to be deregistered under the Securities Exchange Act of 1934, as amended, and delisted from quotation on the New York Stock Exchange.

The Merger Agreement includes customary representations, warranties and covenants of the parties. The covenants of Sitel include, subject to certain exceptions, covenants to (i) recommend that its stockholders vote for the approval and adoption of the Merger Agreement and the Merger, (ii) hold a stockholders’ meeting for the purpose of voting on the adoption of the Merger Agreement, (iii) not withdraw its recommendation, approve an alternative business combination transaction or proposal, or approve or enter into an agreement for an alternative business combination transaction, (iv) not solicit, initiate or facilitate alternative business combination transaction proposals and (v) not engage in discussions or negotiations concerning or disclose nonpublic information in connection with alternative business combination transactions or proposals.

The foregoing summary of certain provisions of the Voting Agreements and the Merger Agreement is not intended to be complete and is qualified in its entirety by reference to the full text of such agreements.

A copy of the Merger Agreement is filed as Exhibit 99.2 and is incorporated herein by reference.

Item 5.  Interest in Securities of the Issuer

(a) and (b) The information contained on the cover pages of this Statement is incorporated herein by reference. As a result of entering into the Voting Agreements, Stagecoach and ClientLogic may be deemed to have (i) beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) and (ii) shared power to vote or direct the vote of 14,879,349 shares of Common Stock, which represents approximately 19.99% of the shares of Common Stock deemed issued and outstanding as of October 6, 2006, as represented by Sitel in the Merger Agreement, subject to the conditions and limitations of the Voting Agreements.

 

ClientLogic Holdings is the majority stockholder of ClientLogic and may therefore be deemed to indirectly control Stagecoach. Onex is the majority member of ClientLogic Holdings and may therefore be deemed to indirectly control ClientLogic and Stagecoach. Mr. Schwartz is the majority stockholder of Onex and may therefore be deemed to indirectly control ClientLogic and Stagecoach. As a result of the foregoing, ClientLogic Holdings, Onex and Mr. Schwartz may be deemed to indirectly control the Common Stock beneficially owned by Stagecoach and ClientLogic.

 

Apart from the terms and conditions set forth in the Voting Agreements, ClientLogic and Stagecoach are not entitled to any rights of a stockholder of Sitel. ClientLogic and Stagecoach do not, other than as specified in the Voting Agreements, have (i) sole or shared power to vote or direct the vote or (ii) sole or shared power to dispose or direct the disposition of Common Stock.

 

(c) Except as set forth or incorporated herein, none of the Reporting Persons, and, to the best knowledge of the Reporting Persons, none of the individuals listed in Annex I, has effected any transaction in Common Stock during the past 60 days.

 

(d) Not applicable.

 

(e) Not applicable.

 

References to, and descriptions of, the Voting Agreements in this Item 5 are qualified in their entirety by reference to the Voting Agreements, copies of which are filed as Exhibits 99.2, 99.3 and 99.4 to this Statement,

 

9 of 14

 

respectively, and which are incorporated by reference in this Item 5 in their entirety where such references and descriptions appear.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Items 3, 4 and 5 and Exhibits 99.2, 99.3, 99.4 and  99.5 are incorporated by herein by reference.

Except as set forth in this Statement, none of the Reporting Persons and, to the best knowledge of the Reporting Persons, none of the person listed on Annex I, have any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of Sitel, including but not limited to, transfer or voting of any of the securities of Sitel, finders’ fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting or investment power over the securities of Sitel.

Item 7. Material to Be Filed as Exhibits

99.1.

Joint Filing Agreement, dated October 23, 2006, by and between Stagecoach Acquisition Corporation, ClientLogic Corporation, Onex ClientLogic Holdings LLC, Onex Corporation and Gerald W. Schwartz.

99.2*

Agreement and Plan of Merger, dated October 12, 2006, among ClientLogic Corporation, Stagecoach Acquisition Corporation and Sitel Corporation.

99.3

Voting Agreement, dated October 12, 2006, by and among ClientLogic Corporation, Stagecoach Acquisition Corporation and James F. Lynch.

99.4

Voting Agreement, dated October 12, 2006, by and among ClientLogic Corporation, Stagecoach Acquisition Corporation and Private Equity Investors IV, L.P.

99.5

Voting Agreement, dated October 12, 2006, by and among ClientLogic Corporation, Stagecoach Acquisition Corporation, Jana Piranha Master Fund, Ltd. and JANA Partners LLC.

 

*

Filed as Exhibit 2.1 to Sitel’s Form 8-K, filed with the Commission on October 18, 2006.

 

 

10 of 14

 

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this Statement is true, complete and correct.

Date:  October 23, 2006

 

STAGECOACH ACQUISITION CORPORATION

 

 

/s/ Terrence Mitchell Leve, Sr.

 

Name:  Terrence Mitchell Leve, Sr.

 

Title:   Secretary

 

 

CLIENTLOGIC CORPORATION

 

 

/s/ Terrence Mitchell Leve, Sr.

 

Name:  Terrence Mitchell Leve, Sr.

Title:  Chief Legal Officer & Corporate Secretary

 

ONEX CLIENTLOGIC HOLDINGS LLC
 /s/  Timothy A.R. Duncanson  

Name:    Timothy A.R. Duncanson

 

Title:     Authorized Signatory

 

 

ONEX CORPORATION

 

 

/s/ Christopher Govan

Name: Christopher Govan

 

Title: Vice President

 

 

/s/ Donald W. Lewtas

Name: Donald W. Lewtas

 

Title: Vice President

 

 

GERALD W. SCHWARTZ

 

 

/s/ Donald W. Lewtas

Authorized Signatory

 

 

 

11 of 14

 

 

ANNEX I

 

Information Concerning Executive Officers and

Directors of Stagecoach, ClientLogic Holdings, ClientLogic and Onex

 

The current executive officers and directors of Stagecoach, ClientLogic, ClientLogic Holdings and Onex are listed below. The address of ClientLogic and Stagecoach is 3102 West End Avenue, Suite 1000 Nashville, Tennessee 37203, the address of ClientLogic Holdings is 421 Leader Street, Marion, Ohio 43302 and the address of Onex is 161 Bay Street, Toronto, Ontario M5J 2S1. Unless otherwise indicated, all positions set forth below opposite an individual’s name refer to positions within ClientLogic, Stagecoach or Onex, and, where applicable, the business address listed for each individual not principally employed by ClientLogic is also the address of the corporation or other organization that principally employs that individual.

 

 

Stagecoach Executive Officers and Directors

 

 

Name

Position/Present Principal Occupation or

Employment and Business Address

Citizenship

David Garner

President, Director
3102 West End Avenue, Suite 1000 Nashville, Tennessee 37203

USA

Paul Stone

Vice President and Chief Financial Officer, Director
3102 West End Avenue, Suite 1000 Nashville, Tennessee 37203

USA

Craig Jantzi

Treasurer, Director
3102 West End Avenue, Suite 1000 Nashville, Tennessee 37203

USA

Terrence Mitchell Leve, Sr.

Secretary, Director
3102 West End Avenue, Suite 1000 Nashville, Tennessee 37203

USA

 

 

 

ClientLogic Executive Officers

 

 

Name

Present Position with ClientLogic

Citizenship

 

 

 

David Garner

President and Chief Executive Officer and Director

USA

 

 

 

Paul Stone

Chief Financial Officer

USA

 

 

 

Chad Carlson

Chief Operating Officer, Americas and Philippines

USA

 

 

 

Julie Casteel

Chief Sales & Marketing Officer

USA

 

 

 

Terrence Leve, Sr.

Chief Legal Officer & Corporate Secretary

USA

 

 

 

Glenn Timms

Chief Executive Officer – EMEA

United Kingdom

 

 

 

Thomas O. Harbison

Executive Vice President

USA

 

 

 

Virginia T. Goldsberry

Chief Human Resources Officer

USA

 

 

 

Dale W. Saville

Executive Vice President, Corporate Services

USA

 

 

 

David W. Eckert

Chief Information Officer

USA

 

 

12 of 14

 

 

ClientLogic Directors

 

 

Name

Position/Present Principal Occupation or

Employment and Business Address

Citizenship

 

 

 

Seth M. Mersky

Managing Director, Onex

161 Bay Street, Toronto, Ontario M5J 2S1

Canada

 

 

 

David Hirsh

Director, ClientLogic

161 Bay Street, Toronto, Ontario M5J 2S1

Canada

 

 

 

Thomas O. Harbison

Vice Chairman and Executive Vice President, ClientLogic

5445 La Sierra, Dallas, Texas 75231

USA

 

 

 

Lisa Melchior

Vice President, OMERS Capital Partners

200 Bay Street, Toronto, Ontario M5J 2J2

USA

 

 

 

Keith Powell

President, Keith Powell Consulting, Inc.

4243 Bridlepath Trail, Mississauga, Ontario L5L 3K3

USA

 

 

 

Harvey Golub

Corporate Director/Advisor

500 Frank W. Burr Blvd., Teaneck, New Jersey 07666

USA

 

 

 

David Garner

President and Chief Executive Officer, ClientLogic

3102 West End Avenue, Suite 1000 Nashville, Tennessee 37203

USA

 

 

ClientLogic Holdings Executive Officers and Directors

 

 

Name

Position/Present Principal Occupation or

Employment and Business Address

Citizenship

 

 

 
Anthony Munk

Director and Representative, ClientLogic Holdings,
421 Leader Street, Marion, Ohio  43302 

Canada 

 

 

 

Donald West

Director and Representative, ClientLogic Holdings,
421 Leader Street, Marion, Ohio  43302 

USA 

 

 

 

John Trojano

Director and Representative, ClientLogic Holdings,

421 Leader Street, Marion, Ohio  43302 

USA 

 

 

 

 

 

13 of 14

 

 

 

 

 

Onex Executive Officers

 

 

Name

Present Position with Onex

Citizenship

 

 

 

Gerald W. Schwartz

Chairman of the Board, President and Chief Executive Officer and Director

Canada

 

 

 

Andrea E. Daly

Vice President and General Counsel

Canada

 

 

 

Timothy A.R. Duncanson

Managing Director

Canada

 

 

 

Christopher A. Govan

Vice President – Taxation

Canada

 

 

 

Ewout R. Heersink

Managing Director and Chief Financial Officer

Canada

 

 

 

Mark L. Hilson

Managing Director

Canada

 

 

 

Donald W. Lewtas

Vice President – Finance

Canada

 

 

 

Seth M. Mersky

Managing Director

USA

 

 

 

Andrew J. Sheiner

Managing Director

Canada

 

 

 

Nigel S. Wright

Managing Director

Canada

 

 

 

John S. Elder

Secretary

Canada

 

 

Onex Directors

 

 

Name

Position/Present Principal Occupation or

Employment and Business Address

Citizenship

 

 

 

Gerald W. Schwartz

Chairman of the Board, President and Chief Executive Officer, Onex,
161 Bay Street, Toronto, Ontario M5J 2S1

Canada

 

 

 

Daniel C. Casey

Chairman of the Board, Chief Executive Officer and President,
Creson Corporation, 16 Clarence Square, Toronto, Ontario  M5V 1H1

Canada

 

 

 

John B. McCoy

 Corporate Director, c/o Onex,
 161 Bay Street, Toronto, Ontario  M5J 2S1

USA

 

 

 

J. Robert S. Prichard

President and Chief Executive Officer, Torstar Corporation
One Yonge Street, Toronto, Ontario  M5E 1E6 

Canada

 

 

 

Heather M. Reisman

Chair and Chief Executive Officer, Indigo Books & Music Inc.
468 King Street West, Suite 500, Toronto, Ontario  M5V 1L8 

Canada

 

 

 

Peter C. Godsoe

 Corporate Director, c/o Onex,
161 Bay Street, Toronto, Ontario  M5J 2S1

Canada

 

 

 

Serge Gouin

Chairman of the Board, Quebecor Media Inc.
612 St. Jacques Street, 13th Floor, Montreal, Quebec H3C 4M8 

Canada

 

 

 

Brian M. King

 Corporate Director, c/o Onex,
161 Bay Street, Toronto, Ontario  M5J 2S1

Canada

 

 

 

Arni C. Thorsteinson

President, Shelter Canadian Properties Limited,
2600-7 Evergreen Place, Winnipeg, Manitoba  R3L 2T3 

Canada

 

 

 

14 of 14

 

 

 

 EX-99.1 2 formsc13d_exh99-1102006.htm JOINT FILING AGREEMENT

Exhibit 99.1

JOINT FILING AGREEMENT

 

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a Schedule 13D (including amendments thereto) with respect to the common stock of SITEL Corporation and further agree that this Joint Filing Agreement be included as an exhibit to such joint filing.

 

Dated:  October 23, 2006

 

  CLIENTLOGIC CORPORATION
     
  By:

 /s/  Terrence Mitchell Level, Sr.
    Name:  Terrence Mitchell Leve, Sr.
    Title:  Chief Legal Officer and Corporate Secretary 
     
     
  STAGECOACH ACQUISITION CORPORATION
     
  By:
/s/  Terrence Mitchell Level, Sr.
    Name:  Terrence Mitchell Leve, Sr.
    Title:  Secretary
     
     
  ONEX CORPORATION
     
  By:
/s/  Donald W. Lewtas
    Name:  Donald W. Lewtas
    Title:  Vice President
     
     
  ONEX CLIENTLOGIC HOLDINGS LLC
     
  By:
/s/  Timothy A.R. Duncanson
    Name:  Timothy A.R. Duncanson
    Authorized Signatory
     
     
  GERALD W. SCHWARTZ
     
  By:
/s/  Donald W. Lewtas
    Name:  Donald W. Lewtas
    Authorized Signatory
     

 

 EX-99.3 3 formsc13d_exh99-3102006.htm VOTING AGREEMENT (J.F. LYNCH)

Exhibit 99.3

 

VOTING AGREEMENT

 

THIS VOTING AGREEMENT (this “Agreement”) dated as of October 12, 2006 by and among CLIENTLOGIC CORPORATION, a Delaware corporation (the “Parent”), STAGECOACH ACQUISITION CORPORATION, a Minnesota corporation and wholly owned subsidiary of the Parent (the “Merger Sub”), and JAMES F. LYNCH (the “Shareholder”), a shareholder of SITEL CORPORATION, a Minnesota corporation (the “Company”).

A.         The Parent and the Merger Sub have proposed entering into an Agreement and Plan of Merger dated October 12, 2006 (as amended from time to time, the “Merger Agreement”), with the Company, pursuant to which the Merger Sub will be merged with and into the Company, upon the terms and subject to the conditions contained in the Merger Agreement (the “Merger”) and all shares of common stock of the Company (the “Company Common Stock”) outstanding immediately prior to the Effective Time (as defined in the Merger Agreement) of the Merger, other than Dissenting Shares, will be converted into the right to receive from the Parent the Merger Consideration (as such terms are defined in the Merger Agreement).

B.          The Shareholder is the record or beneficial owner of the number of shares of Company Common Stock set forth on Schedule I hereto opposite the Shareholder’s name.

C.          As a condition to entering into the Merger Agreement and incurring the obligations set forth therein, the Parent and the Merger Sub have required that the Shareholder enter into this Agreement.

D.         The Shareholder wishes to induce the Parent and the Merger Sub to enter into the Merger Agreement and, therefore, the Shareholder is willing to enter into this Agreement.

E.          Prior to the execution of this Agreement, a committee of the Company’s Board of Directors, composed solely of “disinterested directors” (as such term is defined in Section 302A.673, Subd. 1(d)(3) of the Minnesota Business Corporation Act (the “MBCA”)), has approved, pursuant to Section 302A.673, Subd. 1 of the MBCA, the execution and performance by the Shareholder of this Agreement, including the voting agreement, irrevocable proxy and other arrangements contemplated pursuant to this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE I

VOTING AGREEMENT

1.1.      Voting Agreement. The Shareholder, in his, her or its capacity as a shareholder of the Company, or as a representative with the authority to vote shares of Company Common Stock, hereby agrees that, from and after the date hereof until the Termination Time (as defined in Section 5.1 below), at any meeting (or any action by written consent in lieu of a meeting) of the shareholders of the Company called to vote upon the approval of the Merger, the Merger Agreement and the transactions contemplated therein or at any adjournment thereof or in any other circumstances upon which a vote or other approval with respect to the Merger, the Merger Agreement and the transactions contemplated therein is sought, the Shareholder will vote (or cause to be voted), at the time of such meeting or adjournment, the Shareholder’s Shares: (i) in favor of the approval and adoption of the Merger Agreement and the terms thereof, the Merger and all the transactions contemplated by the Merger Agreement and otherwise in such manner as may be necessary to consummate the Merger; and (ii) against any action, agreement, 

 

1

 

transaction (other than the Merger Agreement or the transactions contemplated thereby) or proposal (including any Acquisition Proposal) that could reasonably be expected to impede, interfere, delay, discourage or adversely affect the Merger Agreement, the Merger or this Agreement. Any vote by the Shareholder that is not in accordance with this Section 1.1 will be considered null and void, and the provisions of Section 1.2 will be deemed to take immediate effect. Nothing in this Agreement will be deemed to restrict or limit the right of the Shareholder or any affiliate of the Shareholder to act in his, her or its capacity as an officer or director of the Company consistent with his, her or its fiduciary obligations in such capacity or as the Shareholder is advised by counsel is required under applicable law.

1.2.      Irrevocable Proxy. The Shareholder hereby grants to and appoints Parent and each of its officers (in their capacity as such) its attorney-in-fact, agent and proxy (such constitution and appointment, the “Irrevocable Proxy”) with full power of substitution, to vote and otherwise act with respect to the Shareholder’s Shares at any meeting of shareholders of the Company, whether annual or special and whether or not an adjourned or postponed meeting (or any action by written consent of the shareholders of the Company in lieu of a meeting), to effect any action contemplated by Section 1.1, to the extent, but only to the extent, not voted by the Shareholder in accordance with Section 1.1. The Shareholder agrees that this proxy shall be irrevocable during the term of this Agreement and is coupled with an interest sufficient at law to support an irrevocable proxy and given to Parent as an inducement to enter into the Merger Agreement and, to the extent permitted under applicable law, will be valid and binding on any person to whom a Shareholder may transfer any of his, her or its Securities in breach of this Agreement. The Shareholder agrees to take such further action or execute such other instruments as may be reasonably requested by Parent or Merger Sub to effectuate the intent of this Section 1.2. To the extent inconsistent with the provisions of this Agreement, the Shareholder hereby revokes all other proxies and powers of attorney with respect to the Shareholder’s Shares that may have heretofore been appointed or granted, and no subsequent proxy or power of attorney will be given (and if given, will not be effective) by the Shareholder with respect thereto. All authority herein conferred or agreed to be conferred will survive the death or incapacity of the Shareholder and any obligation of the Shareholder under this Agreement will be binding upon the heirs, personal representatives, successors and assigns of the Shareholder.

1.3. Definition of “Shares”. For purposes of this Agreement, the term “Shares” means the number of shares of Company Common Stock set forth on Schedule I hereto, but shall be deemed to exclude any additional shares of capital stock of the Company (including any additional shares of Company Common Stock) as to which the Shareholder has or otherwise acquires “beneficial ownership” (as defined in Section 302A.011, subd. 41, of the MBCA) (“Beneficial Ownership”) as of the date hereof or hereafter, including without limitation any shares of capital stock of the Company issuable upon exercise of any options or other rights to purchase shares of capital stock of the Company held by the Shareholder.

1.4. Voting Power Threshold. Notwithstanding anything to the contrary in Section 1.3 hereof, to the extent that the Shareholder and any other shareholders of the Company that have entered into a voting agreement in substantially the form of this Agreement as of the date hereof (collectively, the “Company Shareholders”) in the aggregate have Beneficial Ownership of shares of capital stock of the Company which is less than 19.99% of the voting power of the shares of the Company with respect to the election of directors (the “Voting Power Threshold”), then the aggregate number of shares of Company Common Stock included in the definition of “Shares” in this Agreement and each of such voting agreements of the other Company Shareholders (collectively with this Agreement, the “Company Shareholder Voting Agreements”) shall automatically be increased, without further action by, or on behalf of, the Parent, Merger Sub, Company or the Company Shareholders, on a pro-rata basis among the Company Shareholders that hold additional shares of Company Common Stock, such that the resulting aggregate shares of Company Common Stock covered by the Company Shareholder Voting Agreements shall equal

 

2

the Voting Power Threshold.  In no event shall the aggregate number of shares of Company Common Stock covered by the Company Common Stock covered by the Company Shareholder Voting Agreements exceed the Voting Power Threshold.

 

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER

The Shareholder hereby represents and warrants to the Parent and to the Merger Sub as follows:

2.1.      Power; Binding Agreement. This execution, delivery and performance by the Shareholder of this Agreement has been duly authorized, executed and delivered by and on behalf of the Shareholder and constitutes a legal, valid and binding obligation of the Shareholder, enforceable in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency, and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies).

2.2.     No Conflict; Required Filings and Consents.

(a)         The execution and delivery of this Agreement by the Shareholder does not, and the performance of this Agreement by the Shareholder will not, (i) conflict with or result in any violation of any agreement of limited partnership, articles of incorporation or bylaws or equivalent organizational documents applicable to the Shareholder, (ii) assuming satisfaction of the requirements set forth in Section 2.2(b) below, conflict with or result in any violation of any federal, state, local, and foreign law, ordinance, regulation, interpretation, judgment, decree, injunction, permit, license, certificate, governmental requirement, order, or any similar item of any court or other Governmental Authority applicable to the Shareholder or by which any property or asset of the Shareholder is bound or affected or (iii) result in any breach of, or constitute a default (or event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any Shares (other than pursuant to this Agreement) pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation, except for any such conflicts, violations, breaches, defaults or other occurrences that would not adversely affect or materially delay the ability of the Shareholder to carry out his, her or its obligations under this Agreement.

(b)         The execution and delivery of this Agreement by the Shareholder does not, and the performance of this Agreement by the Shareholder will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Authority, except (i) for applicable requirements, if any, of federal and state securities laws, state takeover laws and the pre-merger notifications of the HSR Act, (ii) for those required to be made with self-regulatory organizations and Governmental Authorities regulating brokers, dealers, investment advisors, investment companies, banks, trust companies and insurance companies and (iii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not adversely affect or materially delay the ability of the Shareholder to carry out his, her or its obligations under this Agreement.

2.3.      Ownership of Shares. As of the date hereof, the Shareholder is the record or beneficial owner of (a) the number of Shares set forth opposite the Shareholder’s name on Schedule I hereto and (b) any shares of Company Common Stock added to the definition of “Shares” pursuant to Section 1.4, and has, and (subject to the last sentence of Section 4.1) throughout the term of this Agreement will have good, marketable title to such Shares free and clear of all Liens. Except as set forth on Schedule I, the Shares owned by the Shareholder are owned free and clear of all Liens, other than any Liens created by

 

3

this Agreement. The Shareholder has the sole right and power to vote and dispose of the Shares, and none of the Shares is subject to any irrevocable proxy, power of attorney, voting trust or other agreement, arrangement or restriction with respect to the voting or transfer (other than the provisions of the Securities Act or state securities laws or as provided in this Agreement) of any of the Shares, which appointment or grant is still effective.

2.4.      Absence of Litigation. As of the date hereof, there is no litigation, suit, claim, action, proceeding or investigation pending or, to the knowledge of the Shareholder, threatened against the Shareholder, or any property or asset of the Shareholder, before any Governmental Authority that seeks to delay or prevent the consummation of the Merger or of the transactions contemplated by the Merger Agreement.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

As an inducement to the Shareholder to enter into this Agreement, the Parent and the Merger Sub, jointly and severally, hereby represent and warrant to the Shareholder as follows:

3.1.      Power; Binding Agreement. Each of Parent and Merger Sub is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and the State of Minnesota, respectively, and has the requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Parent and the Merger Sub, and (assuming due authorization, execution and delivery by the Shareholder) this Agreement constitutes a legal, valid and binding obligation of the Parent and the Merger Sub enforceable against the Parent and the Merger Sub in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency, and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies).

3.2.

No Conflict; Required Filings and Consents.

(a)         The execution and delivery of this Agreement by the Parent and the Merger Sub do not, and the performance of this Agreement by the Parent and the Merger Sub will not, (i) conflict with or result in any violation of the certificate or articles of incorporation or bylaws or equivalent organizational documents of the Parent or the Merger Sub, (ii) assuming satisfaction of the requirements set forth in Section 3.2(b) below, conflict with or result in any violation of any federal, state, local, and foreign law, ordinance, regulation, interpretation, judgment, decree, injunction, permit, license, certificate, governmental requirement, order, or any similar item of any court or other Governmental Authority applicable to the Parent and the Merger Sub or by which any property or asset of the Parent or the Merger Sub is bound or affected or (iii) result in any breach of, or constitute a default (or event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of the Parent or the Merger Sub pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation, except for any such conflicts, violations, breaches, defaults or other occurrences that would not adversely affect or materially delay the ability of the Parent or the Merger Sub to carry out its obligations under this Agreement or the Merger Agreement.

(b)         The execution and delivery of this Agreement by the Parent and the Merger Sub do not, and the performance of this Agreement by the Parent and the Merger Sub will not, require

 

4

any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Authority, except (i) for applicable requirements, if any, of federal and state securities laws, state takeover laws and the premerger notifications of the HSR Act, (ii) for those required to be made with self-regulatory organizations and Governmental Entities regulating brokers, dealers, investment advisors, investment companies, banks, trust companies and insurance companies and (iii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not adversely affect or materially delay the ability of the Parent or the Merger Sub to carry out its obligations under this Agreement or the Merger Agreement.

ARTICLE IV

COVENANTS OF THE SHAREHOLDER

4.1.      Restriction on Disposition or Encumbrance of Shares. The Shareholder hereby agrees that, except as contemplated by this Agreement or except with the prior written consent of the Parent, the Shareholder will not, other than pursuant to the terms of this Agreement or the Merger Agreement, (i) make any sales, gifts, transfers, pledges, or other dispositions of Company Common Stock (including any shares of Company Common Stock issued upon the exercise of Company Options), (ii) deposit any Company Common Stock (including any shares of Company Common Stock issued upon the exercise of Company Options) into a voting trust or enter into any voting agreement or arrangement or understanding with respect thereto, (iii) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition, sale, assignment transfer or other disposition of Company Common Stock (including any shares of Company Common Stock issued upon the exercise of Company Options) or (iv) take any action that could make any of its representations or warranties contained herein untrue or incorrect or could have the effect of preventing or disabling the Shareholder from performing any of its obligations hereunder. Notwithstanding anything herein to the contrary, the Shareholder may dispose of its Company Common Stock provided that the transferee has prior to such disposition agreed to assume all of the Shareholder’s obligations under this Agreement and to be otherwise bound by all provisions of this Agreement, including without limitation, the granting of an irrevocable proxy and the making of representations and warranties.

4.2.      No Announcements; No Solicitation of Transactions. Subject to and without prejudice to their fiduciary obligations as employees, officers or directors of the Company and except as permitted by the Merger Agreement, the Shareholder agrees that between the date of this Agreement and the Termination Time, the Shareholder will not, and will use its reasonable efforts to cause its attorneys, accountants or financial advisors or other similar representatives or, in the case of a Shareholder that is an entity, its members, partners, directors, officers or employees, (“Representatives”) retained by it not to, directly or indirectly through another Person, (i) issue any press release or make any other public statement or announcement with respect to the Merger Agreement, this Agreement, the Merger or any of the transactions contemplated thereby or hereby, except as may be required by applicable law including through amendments to any applicable Schedule 13D filed with the Securities and Exchange Commission; (ii) solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, or (iii) participate in any discussions or negotiations regarding any Acquisition Proposal; provided that the foregoing shall not limit or prohibit any Representative who is a director of the Company from exercising his or her fiduciary duty solely as a director of the Company in a manner consistent with the terms and conditions set forth in the Merger Agreement.

 

5

 

4.3. Further Action. Upon the terms and subject to the conditions hereof, the Parent, the Merger Sub and the Shareholder will use their respective reasonable efforts to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective this Agreement, provided that with respect to the Shareholder such efforts shall be made upon the request and at the expense of the Parent and the Merger Sub.

4.4.      Dissenters’ Rights. The Shareholder hereby irrevocably waives any and all rights which its may have as to appraisal, dissent or any similar or related matter with respect to any of the Shareholder’s Shares which may arise with respect to the Merger, including, without limitation, under Sections 302A.471 and 302A.473 of the MBCA.

4.5.      Officers and Directors. Notwithstanding anything contained to the contrary in this Agreement, in the event a Representative is a director or officer of the Company, nothing in this Agreement is intended or shall be construed to require such Representative, solely in his or her capacity as a director or officer of the Company, to act or fail to act in any manner inconsistent with his or her fiduciary duties in such capacity. Furthermore, no Representative who is or becomes (during the term hereof) a director or officer of the Company makes any agreement or understanding herein solely in his or her capacity as a director or officer, and nothing herein will limit or affect, or give rise to any liability of any Representative solely in such Person's capacity as a director or officer of the Company.

ARTICLE V

TERMINATION

5.1.       Termination. Except for this Section 5.1, this Agreement, and all rights and obligations of the parties hereunder, will terminate, and no party will have any rights or obligations hereunder and this Agreement will become null and void and have no further effect upon the earlier of: (i) the Effective Time, (ii) the termination of the Merger Agreement for any reason (the earlier of such times, the “Termination Time”), (iii) March 31, 2007 and (iv) any material amendment to (including without limitation a decrease in or a change in the form of the consideration paid to shareholders or any addition of a material obligation or additional liability on the part of the Shareholder) or waiver of any material condition in the Merger Agreement. Nothing in this Section 5.1 shall relieve any party of liability for breach of this Agreement.

ARTICLE VI

MISCELLANEOUS

6.1.      Adjustments. In the event of any increase or decrease or other change in the Shares by reason of stock dividend, stock split, recapitalizations, combinations, exchanges of shares or the like, then the terms of this Agreement, including the term “Shares” as defined herein, will apply to the shares of capital stock and other securities of the Company held by the Shareholder immediately following the effectiveness of the such events.

6.2.     Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement were not performed in accordance with the terms hereof and that the parties will be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity.

6.3.      Expenses. All costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the party incurring such costs and expenses, whether or not the Closing will have occurred.

 

6

 

6.4.       Amendment. This Agreement may not be amended except by an instrument in writing signed by all the parties hereto.

6.5.      Waiver. Any party to this Agreement may (i) extend the time for the performance of any obligation or other act of any other party hereto, (ii) waive any inaccuracy in the representations and warranties of another party contained herein or in any document delivered pursuant hereto and (iii) waive compliance with any agreement of another party contained herein; provided, however, that any such extension or waiver will only be binding upon the party or parties granting such extension or waiver and any such extension or waiver will be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby.

6.6.      Assignment. This Agreement and the rights and obligations hereunder will not be assigned by operation of law or otherwise by any of the parties hereto without the prior written consent of the other parties hereto, except that the Parent and the Merger Sub may assign all or any of their rights and obligations hereunder to any directly or wholly-owned Subsidiary of Parent, upon written notice to the Shareholder if the assignee shall assume the obligations of Parent and/or Merger Sub hereunder. Subject to the foregoing, all the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto.

6.7.     Notices. All notices and other communications hereunder will be in writing and will be deemed given (a) on the date of delivery if delivered personally, or by telecopy or facsimile, upon confirmation of receipt, (b) on the first Business Day following the date of dispatch if delivered by a recognized next-day courier service, or (c) on the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder must be delivered as set forth below, or pursuant to instructions as may be designated in writing by the party to receive such notice:

(a)

if to the Parent or the Merger Sub, to it at:

ClientLogic Corporation

3102 West End Avenue, Suite 1000

Nashville, Tennessee 37203

Attention: Terrence Leve, Chief Legal Officer

Facsimile No.: 615-301-7252

 

with a copy (which will not constitute notice) to:

 

Mayer, Brown, Rowe & Maw LLP

1675 Broadway

New York, New York 10019

Attention: Mark S. Wojciechowski

Facsimile No.: (212) 262-1910

 

(b)

If to the Shareholder, to it, him or her at the address set forth on Schedule I:

with a copy (which will not constitute notice) to:

Parsonage Vandenack Williams, LLC

5332 South 138 Street, Suite 100

Omaha, NE 68137-2945

Attention: Ron Parsonage, Esq.

Facsimile No.: (402) 504-1935

 

7

6.8.      Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the matters contemplated herein are not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner.

6.9.      Parties in Interest. The representation, warranties, covenants and agreements contained in this Agreement will be binding upon and inure solely to the benefit of each party hereto, and their respective successors and assigns, and nothing in this Agreement, express or implied, is intended to or will confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

6.10.    Entire Agreement. This Agreement and (only with respect to the parties other than the Shareholder) the Merger Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

6.11.     Governing Law. This Agreement will be construed in accordance with and governed by the law of the State of Minnesota (without giving effect to choice of law principles thereof).

6.12.     Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and will not affect in any way the meaning or interpretation of this Agreement.

6.13.    Counterparts. This Agreement may be executed and delivered (including by facsimile transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed will be deemed to be an original but all of which taken together will constitute one and the same agreement.

6.14.     Definitions. Capitalized terms used but not defined in this Agreement have the meanings assigned to such terms in the Merger Agreement.

 

[Remainder of page intentionally left blank]

 

8

 

 The parties have duly executed this Voting Agreement as of the day and year first above written.

 

CLIENTLOGIC CORPORATION

By:   /s/ David Garner

Name: David Garner

Title: President and Chief Executive Officer

STAGECOACH ACQUISITION CORPORATION

By: /s/ David Garner

Name: David Garner

Title: President

SHAREHOLDER

Signature: /s/ James F. Lynch

Print Name: James F. Lynch

 

9

SCHEDULE I

 

 

 

 

Name and Address of Shareholder

 

Number of Shares of Company

Common Stock Subject to this Agreement

 

James F. Lynch

SITEL Corporation

7277 World Communications Drive

Omaha, NE 68122

 

 

 

 

 

4,460,467

 

 EX-99 4 formsc13d_exh99-4102006.htm VOTING AGREEMENT (PEI IV, L.P.)

Exhibit 99.4

 

VOTING AGREEMENT

 

THIS VOTING AGREEMENT (this “Agreement”) dated as of October 12, 2006 by and among CLIENTLOGIC CORPORATION, a Delaware corporation (the “Parent”), STAGECOACH ACQUISITION CORPORATION, a Minnesota corporation and wholly owned subsidiary of the Parent (the “Merger Sub”), and PRIVATE EQUITY INVESTORS IV, L.P. (the “Shareholder”), a shareholder of SITEL CORPORATION, a Minnesota corporation (the “Company”).

A.         The Parent and the Merger Sub have proposed entering into an Agreement and Plan of Merger dated October 12, 2006 (as amended from time to time, the “Merger Agreement”), with the Company, pursuant to which the Merger Sub will be merged with and into the Company, upon the terms and subject to the conditions contained in the Merger Agreement (the “Merger”) and all shares of common stock of the Company (the “Company Common Stock”) outstanding immediately prior to the Effective Time (as defined in the Merger Agreement) of the Merger, other than Dissenting Shares, will be converted into the right to receive from the Parent the Merger Consideration (as such terms are defined in the Merger Agreement).

B.          The Shareholder is the record or beneficial owner of the number of shares of Company Common Stock set forth on Schedule I hereto opposite the Shareholder’s name.

C.          As a condition to entering into the Merger Agreement and incurring the obligations set forth therein, the Parent and the Merger Sub have required that the Shareholder enter into this Agreement.

D.         The Shareholder wishes to induce the Parent and the Merger Sub to enter into the Merger Agreement and, therefore, the Shareholder is willing to enter into this Agreement.

E.          Prior to the execution of this Agreement, a committee of the Company’s Board of Directors, composed solely of “disinterested directors” (as such term is defined in Section 302A.673, Subd. 1(d)(3) of the Minnesota Business Corporation Act (the “MBCA”)), has approved, pursuant to Section 302A.673, Subd. 1 of the MBCA, the execution and performance by the Shareholder of this Agreement, including the voting agreement, irrevocable proxy and other arrangements contemplated pursuant to this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE I

VOTING AGREEMENT

1.1.      Voting Agreement. The Shareholder, in his, her or its capacity as a shareholder of the Company, or as a representative with the authority to vote shares of Company Common Stock, hereby agrees that, from and after the date hereof until the Termination Time (as defined in Section 5.1 below), at any meeting (or any action by written consent in lieu of a meeting) of the shareholders of the Company called to vote upon the approval of the Merger, the Merger Agreement and the transactions contemplated therein or at any adjournment thereof or in any other circumstances upon which a vote or other approval with respect to the Merger, the Merger Agreement and the transactions contemplated therein is sought, the Shareholder will vote (or cause to be voted), at the time of such meeting or adjournment, the Shareholder’s Shares: (i) in favor of the approval and adoption of the Merger Agreement and the terms thereof, the Merger and all the transactions contemplated by the Merger Agreement and otherwise in such manner as may be necessary to consummate the Merger; and (ii) against any action, agreement, 

 

1

 

 

transaction (other than the Merger Agreement or the transactions contemplated thereby) or proposal (including any Acquisition Proposal) that could reasonably be expected to impede, interfere, delay, discourage or adversely affect the Merger Agreement, the Merger or this Agreement. Any vote by the Shareholder that is not in accordance with this Section 1.1 will be considered null and void, and the provisions of Section 1.2 will be deemed to take immediate effect. Nothing in this Agreement will be deemed to restrict or limit the right of the Shareholder or any affiliate of the Shareholder to act in his, her or its capacity as an officer or director of the Company consistent with his, her or its fiduciary obligations in such capacity or as the Shareholder is advised by counsel is required under applicable law.

1.2.      Irrevocable Proxy. The Shareholder hereby grants to and appoints Parent and each of its officers (in their capacity as such) its attorney-in-fact, agent and proxy (such constitution and appointment, the “Irrevocable Proxy”) with full power of substitution, to vote and otherwise act with respect to the Shareholder’s Shares at any meeting of shareholders of the Company, whether annual or special and whether or not an adjourned or postponed meeting (or any action by written consent of the shareholders of the Company in lieu of a meeting), to effect any action contemplated by Section 1.1, to the extent, but only to the extent, not voted by the Shareholder in accordance with Section 1.1. The Shareholder agrees that this proxy shall be irrevocable during the term of this Agreement and is coupled with an interest sufficient at law to support an irrevocable proxy and given to Parent as an inducement to enter into the Merger Agreement and, to the extent permitted under applicable law, will be valid and binding on any person to whom a Shareholder may transfer any of his, her or its Securities in breach of this Agreement. The Shareholder agrees to take such further action or execute such other instruments as may be reasonably requested by Parent or Merger Sub to effectuate the intent of this Section 1.2. To the extent inconsistent with the provisions of this Agreement, the Shareholder hereby revokes all other proxies and powers of attorney with respect to the Shareholder’s Shares that may have heretofore been appointed or granted, and no subsequent proxy or power of attorney will be given (and if given, will not be effective) by the Shareholder with respect thereto. All authority herein conferred or agreed to be conferred will survive the death or incapacity of the Shareholder and any obligation of the Shareholder under this Agreement will be binding upon the heirs, personal representatives, successors and assigns of the Shareholder.

1.3. Definition of “Shares”. For purposes of this Agreement, the term “Shares” means the number of shares of Company Common Stock set forth on Schedule I hereto, but shall be deemed to exclude any additional shares of capital stock of the Company (including any additional shares of Company Common Stock) as to which the Shareholder has or otherwise acquires “beneficial ownership” (as defined in Section 302A.011, subd. 41, of the MBCA) (“Beneficial Ownership”) as of the date hereof or hereafter, including without limitation any shares of capital stock of the Company issuable upon exercise of any options or other rights to purchase shares of capital stock of the Company held by the Shareholder.

1.4. Voting Power Threshold. Notwithstanding anything to the contrary in Section 1.3 hereof, to the extent that the Shareholder and any other shareholders of the Company that have entered into a voting agreement in substantially the form of this Agreement as of the date hereof (collectively, the "Company Shareholders") in the aggregate have Beneficial Ownership of shares of capital stock of the Company which is less than 19.99% of the voting power of the shares of the Company with respect to the election of directors (the "Voting Power Threshold"), then the aggregate number of shares of Company Common Stock included in the definition of "Shares" in this Agreement and each of such voting agreements of the other Company Shareholders (collectively with this Agreement, the "Company Shareholder Voting Agreements") shall automatically be increased, without further action by, or on behalf of, the Parent, Merger Sub, Company or the Company Shareholders, on a pro-rata basis among the Company Shareholders that hold additional shares of Company Common Stock, such that the resulting aggregate shares of Company Common Stock covered by the Company Shareholder Voting Agreements shall equal

 

2

 

 the Voting Power Threshold. in no event shall the aggregate number of shares of Company Common Stock covered by the Company Shareholder Voting Agreements exceed the Voting Power Threshold.

 

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER

The Shareholder hereby represents and warrants to the Parent and to the Merger Sub as follows:

2.1.      Power; Binding Agreement. This execution, delivery and performance by the Shareholder of this Agreement has been duly authorized, executed and delivered by and on behalf of the Shareholder and constitutes a legal, valid and binding obligation of the Shareholder, enforceable in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency, and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies).

2.2.   No Conflict; Required Filings and Consents.

(a)         The execution and delivery of this Agreement by the Shareholder does not, and the performance of this Agreement by the Shareholder will not, (i) conflict with or result in any violation of any agreement of limited partnership, articles of incorporation or bylaws or equivalent organizational documents applicable to the Shareholder, (ii) assuming satisfaction of the requirements set forth in Section 2.2(b) below, conflict with or result in any violation of any federal, state, local, and foreign law, ordinance, regulation, interpretation, judgment, decree, injunction, permit, license, certificate, governmental requirement, order, or any similar item of any court or other Governmental Authority applicable to the Shareholder or by which any property or asset of the Shareholder is bound or affected or (iii) result in any breach of, or constitute a default (or event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any Shares (other than pursuant to this Agreement) pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation, except for any such conflicts, violations, breaches, defaults or other occurrences that would not adversely affect or materially delay the ability of the Shareholder to carry out his, her or its obligations under this Agreement.

(b)         The execution and delivery of this Agreement by the Shareholder does not, and the performance of this Agreement by the Shareholder will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Authority, except (i) for applicable requirements, if any, of federal and state securities laws, state takeover laws and the pre-merger notifications of the HSR Act, (ii) for those required to be made with self-regulatory organizations and Governmental Authorities regulating brokers, dealers, investment advisors, investment companies, banks, trust companies and insurance companies and (iii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not adversely affect or materially delay the ability of the Shareholder to carry out his, her or its obligations under this Agreement.

2.3.      Ownership of Shares. As of the date hereof, the Shareholder is the record or beneficial owner of (a) at least the number of Shares set forth opposite the Shareholder’s name on Schedule I hereto and (b) any shares of Company Common Stock added to the definition of “Shares” pursuant to Section 1.4, and has, and (subject to the last sentence of Section 4.1) throughout the term of this Agreement will have good, marketable title to such Shares free and clear of all Liens. Except as set forth on Schedule I, the Shares owned by the Shareholder are owned free and clear of all Liens, other than any Liens created 

 

3

 

 

by this Agreement. The Shareholder has the sole right and power to vote and dispose of the Shares, and none of the Shares is subject to any irrevocable proxy, power of attorney, voting trust or other agreement, arrangement or restriction with respect to the voting or transfer (other than the provisions of the Securities Act or state securities laws or as provided in this Agreement) of any of the Shares, which appointment or grant is still effective.

2.4.      Absence of Litigation. As of the date hereof, there is no litigation, suit, claim, action, proceeding or investigation pending or, to the knowledge of the Shareholder, threatened against the Shareholder, or any property or asset of the Shareholder, before any Governmental Authority that seeks to delay or prevent the consummation of the Merger or of the transactions contemplated by the Merger Agreement.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

As an inducement to the Shareholder to enter into this Agreement, the Parent and the Merger Sub, jointly and severally, hereby represent and warrant to the Shareholder as follows:

3.1.      Power; Binding Agreement. Each of Parent and Merger Sub is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and the State of Minnesota, respectively, and has the requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Parent and the Merger Sub, and (assuming due authorization, execution and delivery by the Shareholder) this Agreement constitutes a legal, valid and binding obligation of the Parent and the Merger Sub enforceable against the Parent and the Merger Sub in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency, and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies).

3.2.

No Conflict; Required Filings and Consents.

(a)         The execution and delivery of this Agreement by the Parent and the Merger Sub do not, and the performance of this Agreement by the Parent and the Merger Sub will not, (i) conflict with or result in any violation of the certificate or articles of incorporation or bylaws or equivalent organizational documents of the Parent or the Merger Sub, (ii) assuming satisfaction of the requirements set forth in Section 3.2(b) below, conflict with or result in any violation of any federal, state, local, and foreign law, ordinance, regulation, interpretation, judgment, decree, injunction, permit, license, certificate, governmental requirement, order, or any similar item of any court or other Governmental Authority applicable to the Parent and the Merger Sub or by which any property or asset of the Parent or the Merger Sub is bound or affected or (iii) result in any breach of, or constitute a default (or event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of the Parent or the Merger Sub pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation, except for any such conflicts, violations, breaches, defaults or other occurrences that would not adversely affect or materially delay the ability of the Parent or the Merger Sub to carry out its obligations under this Agreement or the Merger Agreement.

 (b)         The execution and delivery of this Agreement by the Parent and the Merger Sub do not, and the performance of this Agreement by the Parent and the Merger Sub will not, require

4

 

 

any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Authority, except (i) for applicable requirements, if any, of federal and state securities laws, state takeover laws and the premerger notifications of the HSR Act, (ii) for those required to be made with self-regulatory organizations and Governmental Entities regulating brokers, dealers, investment advisors, investment companies, banks, trust companies and insurance companies and (iii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not adversely affect or materially delay the ability of the Parent or the Merger Sub to carry out its obligations under this Agreement or the Merger Agreement.

ARTICLE IV

COVENANTS OF THE SHAREHOLDER

4.1.      Restriction on Disposition or Encumbrance of Shares. The Shareholder hereby agrees that, except as contemplated by this Agreement or except with the prior written consent of the Parent, the Shareholder will not, other than pursuant to the terms of this Agreement or the Merger Agreement, (i) make any sales, gifts, transfers, pledges, or other dispositions of Company Common Stock (including any shares of Company Common Stock issued upon the exercise of Company Options), (ii) deposit any Company Common Stock (including any shares of Company Common Stock issued upon the exercise of Company Options) into a voting trust or enter into any voting agreement or arrangement or understanding with respect thereto, (iii) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition, sale, assignment transfer or other disposition of Company Common Stock (including any shares of Company Common Stock issued upon the exercise of Company Options) or (iv) take any action that could make any of its representations or warranties contained herein untrue or incorrect or could have the effect of preventing or disabling the Shareholder from performing any of its obligations hereunder. Notwithstanding anything herein to the contrary, the Shareholder may dispose of its Company Common Stock provided that the transferee has prior to such disposition agreed to assume all of the Shareholder’s obligations under this Agreement and to be otherwise bound by all provisions of this Agreement, including without limitation, the granting of an irrevocable proxy and the making of representations and warranties.

4.2.      No Announcements; No Solicitation of Transactions. Subject to and without prejudice to their fiduciary obligations as employees, officers or directors of the Company and except as permitted by the Merger Agreement, the Shareholder agrees that between the date of this Agreement and the Termination Time, the Shareholder will not, and will use its reasonable efforts to cause its attorneys, accountants or financial advisors or other similar representatives or, in the case of a Shareholder that is an entity, its members, partners, directors, officers or employees, (“Representatives”) retained by it not to, directly or indirectly through another Person, (i) issue any press release or make any other public statement or announcement with respect to the Merger Agreement, this Agreement, the Merger or any of the transactions contemplated thereby or hereby, except as may be required by applicable law including through amendments to any applicable Schedule 13D filed with the Securities and Exchange Commission; (ii) solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, or (iii) participate in any discussions or negotiations regarding any Acquisition Proposal; provided that the foregoing shall not limit or prohibit any Representative who is a director of the Company from exercising his or her fiduciary duty solely as a director of the Company in a manner consistent with the terms and conditions set forth in the Merger Agreement.

4.3. Further Action. Upon the terms and subject to the conditions hereof, the Parent, the Merger Sub and the Shareholder will use their respective reasonable efforts to take, or cause to be taken, all

 

5

 

appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective this Agreement, provided that with respect to the Shareholder such efforts shall be made upon the request and at the expense of the Parent and the Merger Sub.

4.4.      Dissenters’ Rights. The Shareholder hereby irrevocably waives any and all rights which its may have as to appraisal, dissent or any similar or related matter with respect to any of the Shareholder’s Shares which may arise with respect to the Merger, including, without limitation, under Sections 302A.471 and 302A.473 of the MBCA.

4.5.      Officers and Directors. Notwithstanding anything contained to the contrary in this Agreement, in the event a Representative is a director or officer of the Company, nothing in this Agreement is intended or shall be construed to require such Representative, solely in his or her capacity as a director or officer of the Company, to act or fail to act in any manner inconsistent with his or her fiduciary duties in such capacity. Furthermore, no Representative who is or becomes (during the term hereof) a director or officer of the Company makes any agreement or understanding herein solely in his or her capacity as a director or officer, and nothing herein will limit or affect, or give rise to any liability of any Representative solely in such Person's capacity as a director or officer of the Company.

ARTICLE V

TERMINATION

5.1.       Termination. Except for this Section 5.1, this Agreement, and all rights and obligations of the parties hereunder, will terminate, and no party will have any rights or obligations hereunder and this Agreement will become null and void and have no further effect upon the earlier of: (i) the Effective Time, (ii) the termination of the Merger Agreement for any reason (the earlier of such times, the “Termination Time”), (iii) March 31, 2007 and (iv) any material amendment to (including without limitation a decrease in or a change in the form of the consideration paid to shareholders or any addition of a material obligation or additional liability on the part of the Shareholder) or waiver of any material condition in the Merger Agreement. Nothing in this Section 5.1 shall relieve any party of liability for breach of this Agreement.

ARTICLE VI

MISCELLANEOUS

6.1.      Adjustments. In the event of any increase or decrease or other change in the Shares by reason of stock dividend, stock split, recapitalizations, combinations, exchanges of shares or the like, then the terms of this Agreement, including the term “Shares” as defined herein, will apply to the shares of capital stock and other securities of the Company held by the Shareholder immediately following the effectiveness of the such events.

6.2.     Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement were not performed in accordance with the terms hereof and that the parties will be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity.

6.3.      Expenses. All costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the party incurring such costs and expenses, whether or not the Closing will have occurred.

 

6

 

 

6.4.       Amendment. This Agreement may not be amended except by an instrument in writing signed by all the parties hereto.

6.5.      Waiver. Any party to this Agreement may (i) extend the time for the performance of any obligation or other act of any other party hereto, (ii) waive any inaccuracy in the representations and warranties of another party contained herein or in any document delivered pursuant hereto and (iii) waive compliance with any agreement of another party contained herein; provided, however, that any such extension or waiver will only be binding upon the party or parties granting such extension or waiver and any such extension or waiver will be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby.

6.6.      Assignment. This Agreement and the rights and obligations hereunder will not be assigned by operation of law or otherwise by any of the parties hereto without the prior written consent of the other parties hereto, except that the Parent and the Merger Sub may assign all or any of their rights and obligations hereunder to any directly or wholly-owned Subsidiary of Parent, upon written notice to the Shareholder if the assignee shall assume the obligations of Parent and/or Merger Sub hereunder. Subject to the foregoing, all the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto.

6.7.     Notices. All notices and other communications hereunder will be in writing and will be deemed given (a) on the date of delivery if delivered personally, or by telecopy or facsimile, upon confirmation of receipt, (b) on the first Business Day following the date of dispatch if delivered by a recognized next-day courier service, or (c) on the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder must be delivered as set forth below, or pursuant to instructions as may be designated in writing by the party to receive such notice:

(a)

if to the Parent or the Merger Sub, to it at:

ClientLogic Corporation

3102 West End Avenue, Suite 1000

Nashville, Tennessee 37203

Attention: Terrence Leve, Chief Legal Officer

Facsimile No.: 615-301-7252

 

with a copy (which will not constitute notice) to:

 

Mayer, Brown, Rowe & Maw LLP

1675 Broadway

New York, New York 10019

Attention: Mark S. Wojciechowski

Facsimile No.: (212) 262-1910

 

(b)

If to the Shareholder, to it, him or her at the address set forth on Schedule I:

with a copy (which will not constitute notice) to:

Sullivan & Cromwell LLP

125 Broad Street

7

 

New York, New York 10004

Attention:  John J. O’Brien

Facsimile No.:  (212) 558-3588

6.8.      Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the matters contemplated herein are not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner.

6.9.      Parties in Interest. The representation, warranties, covenants and agreements contained in this Agreement will be binding upon and inure solely to the benefit of each party hereto, and their respective successors and assigns, and nothing in this Agreement, express or implied, is intended to or will confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

6.10.    Entire Agreement. This Agreement and (only with respect to the parties other than the Shareholder) the Merger Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

6.11.     Governing Law. This Agreement will be construed in accordance with and governed by the law of the State of Minnesota (without giving effect to choice of law principles thereof).

6.12.     Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and will not affect in any way the meaning or interpretation of this Agreement.

6.13.    Counterparts. This Agreement may be executed and delivered (including by facsimile transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed will be deemed to be an original but all of which taken together will constitute one and the same agreement.

6.14.     Definitions. Capitalized terms used but not defined in this Agreement have the meanings assigned to such terms in the Merger Agreement.

 

[Remainder of page intentionally left blank]

 

8

 

  

The parties have duly executed this Voting Agreement as of the day and year first above written.

 

 

CLIENTLOGIC CORPORATION

By:  /s/  David Garner

Name:  David Garner

Title:   President and Chief Executive Officer

STAGECOACH ACQUISITION CORPORATION

By:  /s/ David Garner

Name:  David Garner

Title:  President and Chief Executive Officer

PRIVATE EQUITY INVESTORS IV, L.P.

By: /s/ Andre J. McSherry

Name:  Andre J. McSherry

Title:  Attorney-in-Fact

 

9

 

 SCHEDULE I

 

 

 

 

Name and Address of Shareholder

 

Number of Shares of Company

Common Stock Subject to this Agreement

 

 

Private Equity Investors IV, L.P.

410 Park Avenue, Suite 830

New York, NY 10022

Attention: Rohit M. Desai

 

 

 

 

 

3,605,647

 

 

 

 EX-99.5 5 formsc13d_exh99-5102006.htm VOTING AGREEMENT (PIRANHA MASTER FUND)

Exhibit 99.5

 

VOTING AGREEMENT

 

THIS VOTING AGREEMENT (this “Agreement”) dated as of October 12, 2006 by and among CLIENTLOGIC CORPORATION, a Delaware corporation (the “Parent”), STAGECOACH ACQUISITION CORPORATION, a Minnesota corporation and wholly owned subsidiary of the Parent (the “Merger Sub”), JANA PIRANHA MASTER FUND, LTD. (the “Shareholder”), a shareholder of SITEL CORPORATION, a Minnesota corporation (the “Company”) and JANA Partners LLC (“JANA Partners”).

A.         The Parent and the Merger Sub have proposed entering into an Agreement and Plan of Merger dated October 12, 2006 (as amended from time to time, the “Merger Agreement”), with the Company, pursuant to which the Merger Sub will be merged with and into the Company, upon the terms and subject to the conditions contained in the Merger Agreement (the “Merger”) and all shares of common stock of the Company (the “Company Common Stock”) outstanding immediately prior to the Effective Time (as defined in the Merger Agreement) of the Merger, other than Dissenting Shares, will be converted into the right to receive from the Parent the Merger Consideration (as such terms are defined in the Merger Agreement).

B.          The Shareholder is the record or beneficial owner of the number of shares of Company Common Stock set forth on Schedule I hereto opposite the Shareholder’s name.

C.          As a condition to entering into the Merger Agreement and incurring the obligations set forth therein, the Parent and the Merger Sub have required that the Shareholder enter into this Agreement.

D.         The Shareholder wishes to induce the Parent and the Merger Sub to enter into the Merger Agreement and, therefore, the Shareholder is willing to enter into this Agreement.

E.          Prior to the execution of this Agreement, a committee of the Company’s Board of Directors, composed solely of “disinterested directors” (as such term is defined in Section 302A.673, Subd. 1(d)(3) of the Minnesota Business Corporation Act (the “MBCA”)), has approved, pursuant to Section 302A.673, Subd. 1 of the MBCA, the execution and performance by the Shareholder of this Agreement, including the voting agreement, irrevocable proxy and other arrangements contemplated pursuant to this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE I

VOTING AGREEMENT

1.1.      Voting Agreement. The Shareholder, in his, her or its capacity as a shareholder of the Company, or as a representative with the authority to vote shares of Company Common Stock, hereby agrees that, from and after the date hereof until the Termination Time (as defined in Section 5.1 below), at any meeting (or any action by written consent in lieu of a meeting) of the shareholders of the Company called to vote upon the approval of the Merger, the Merger Agreement and the transactions contemplated therein or at any adjournment thereof or in any other circumstances upon which a vote or other approval with respect to the Merger, the Merger Agreement and the transactions contemplated therein is sought, the Shareholder will vote (or cause to be voted), at the time of such meeting or adjournment, the Shareholder’s Shares: (i) in favor of the approval and adoption of the Merger Agreement and the terms

 

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thereof, the Merger and all the transactions contemplated by the Merger Agreement and otherwise in such manner as may be necessary to consummate the Merger; and (ii) against any action, agreement, transaction (other than the Merger Agreement or the transactions contemplated thereby) or proposal (including any Acquisition Proposal) that could reasonably be expected to impede, interfere, delay, discourage or adversely affect the Merger Agreement, the Merger or this Agreement. Any vote by the Shareholder that is not in accordance with this Section 1.1 will be considered null and void, and the provisions of Section 1.2 will be deemed to take immediate effect. Nothing in this Agreement will be deemed to restrict or limit Shareholder’s right to act in his, her or its capacity as an officer or director of the Company consistent with his, her or its fiduciary obligations in such capacity as permitted under the Merger Agreement or as the Shareholder is advised by counsel is required under applicable law.

1.2.      Irrevocable Proxy. The Shareholder hereby grants to and appoints Parent and each of its officers (in their capacity as such) its attorney-in-fact, agent and proxy (such constitution and appointment, the “Irrevocable Proxy”) with full power of substitution, to vote and otherwise act with respect to the Shareholder’s Shares at any meeting of shareholders of the Company, whether annual or special and whether or not an adjourned or postponed meeting (or any action by written consent of the shareholders of the Company in lieu of a meeting), to effect any action contemplated by Section 1.1, to the extent, but only to the extent, not voted by the Shareholder in accordance with Section 1.1. The Shareholder agrees that this proxy shall be irrevocable during the term of this Agreement and is coupled with an interest sufficient at law to support an irrevocable proxy and given to Parent as an inducement to enter into the Merger Agreement and, to the extent permitted under applicable law, will be valid and binding on any person to whom a Shareholder may transfer any of his, her or its Securities in breach of this Agreement. The Shareholder agrees to take such further action or execute such other instruments as may be reasonably requested by Parent or Merger Sub to effectuate the intent of this Section 1.2. To the extent inconsistent with the provisions of this Agreement, the Shareholder hereby revokes all other proxies and powers of attorney with respect to the Shareholder’s Shares that may have heretofore been appointed or granted, and no subsequent proxy or power of attorney will be given (and if given, will not be effective) by the Shareholder with respect thereto. All authority herein conferred or agreed to be conferred will survive the death or incapacity of the Shareholder and any obligation of the Shareholder under this Agreement will be binding upon the heirs, personal representatives, successors and assigns of the Shareholder.

1.3. Definition of “Shares”. For purposes of this Agreement, the term “Shares” means the number of shares of Company Common Stock set forth on Schedule I hereto, but shall be deemed to exclude any additional shares of capital stock of the Company (including any additional shares of Company Common Stock) as to which the Shareholder has or otherwise acquires “beneficial ownership” (as defined in Section 302A.011, subd. 41, of the MBCA) (“Beneficial Ownership”) as of the date hereof or hereafter, including without limitation any shares of capital stock of the Company issuable upon exercise of any options or other rights to purchase shares of capital stock of the Company held by the Shareholder.

1.4. Voting Power Threshold. Notwithstanding anything to the contrary in Section 1.3 hereof, to the extent that the Shareholder and any other shareholders of the Company that have entered into a voting agreement in substantially the form of this Agreement as of the date hereof (collectively, the “Company Shareholders”) in the aggregate have Beneficial Ownership of shares of capital stock of the Company which is less than 19.99% of the voting power of the shares of the Company with respect to the election of directors (the “Voting Power Threshold”), then the aggregate number of shares of Company Common Stock included in the definition of “Shares” in this Agreement and each of such voting agreements of the other Company Shareholders (collectively with this Agreement, the “Company Shareholder Voting Agreements”) shall automatically be increased, without further action by, or on behalf of, the Parent, Merger Sub, Company or the Company Shareholders, on a pro-rata basis among the Company

 

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Shareholders that hold additional shares of Company Common Stock, such that the resulting aggregate shares of Company Common Stock covered by the Company Shareholder Voting Agreements shall equal the voting power threshold.  In no event shall the aggregate number of shares of Company Common Stock covered by the Company Shareholder Voting Agreements exceed the Voting Power Threshold.

 

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER

The Shareholder hereby represents and warrants to the Parent and to the Merger Sub as follows:

2.1.      Power; Binding Agreement. This execution, delivery and performance by the Shareholder of this Agreement has been duly authorized, executed and delivered by and on behalf of the Shareholder and constitutes a legal, valid and binding obligation of the Shareholder, enforceable in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency, and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies).

2.2.     No Conflict; Required Filings and Consents.

(a)         The execution and delivery of this Agreement by the Shareholder does not, and the performance of this Agreement by the Shareholder will not, (i) conflict with or result in any violation of any agreement of limited partnership, articles of incorporation or bylaws or equivalent organizational documents applicable to the Shareholder, (ii) assuming satisfaction of the requirements set forth in Section 2.2(b) below, conflict with or result in any violation of any federal, state, local, and foreign law, ordinance, regulation, interpretation, judgment, decree, injunction, permit, license, certificate, governmental requirement, order, or any similar item of any court or other Governmental Authority applicable to the Shareholder or by which any property or asset of the Shareholder is bound or affected or (iii) result in any breach of, or constitute a default (or event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any Shares (other than pursuant to this Agreement) pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation, except for any such conflicts, violations, breaches, defaults or other occurrences that would not adversely affect or materially delay the ability of the Shareholder to carry out his, her or its obligations under this Agreement.

(b)         The execution and delivery of this Agreement by the Shareholder does not, and the performance of this Agreement by the Shareholder will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Authority, except (i) for applicable requirements, if any, of federal and state securities laws, state takeover laws and the pre-merger notifications of the HSR Act, (ii) for those required to be made with self-regulatory organizations and Governmental Authorities regulating brokers, dealers, investment advisors, investment companies, banks, trust companies and insurance companies and (iii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not adversely affect or materially delay the ability of the Shareholder to carry out his, her or its obligations under this Agreement.

2.3.      Ownership of Shares. As of the date hereof, the Shareholder is the record or beneficial owner of (a) at least the number of Shares set forth opposite the Shareholder’s name on Schedule I hereto and (b) any shares of Company Common Stock added to the definition of “Shares” pursuant to Section 1.4, and has, and (subject to the last sentence of Section 4.1) throughout the term of this Agreement will

 

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have good, marketable title to such Shares free and clear of all Liens. Except as set forth on Schedule I, the Shares owned by the Shareholder are owned free and clear of all Liens, other than any Liens created by this Agreement. The Shareholder has the sole right and power to vote and dispose of the Shares, and none of the Shares is subject to any irrevocable proxy, power of attorney, voting trust or other agreement, arrangement or restriction with respect to the voting or transfer (other than the provisions of the Securities Act or state securities laws or as provided in this Agreement) of any of the Shares, which appointment or grant is still effective.

2.4.      Absence of Litigation. As of the date hereof, there is no litigation, suit, claim, action, proceeding or investigation pending or, to the knowledge of the Shareholder, threatened against the Shareholder, or any property or asset of the Shareholder, before any Governmental Authority that seeks to delay or prevent the consummation of the Merger or of the transactions contemplated by the Merger Agreement.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

As an inducement to the Shareholder to enter into this Agreement, the Parent and the Merger Sub, jointly and severally, hereby represent and warrant to the Shareholder as follows:

3.1.      Power; Binding Agreement. Each of Parent and Merger Sub is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and the State of Minnesota, respectively, and has the requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Parent and the Merger Sub, and (assuming due authorization, execution and delivery by the Shareholder) this Agreement constitutes a legal, valid and binding obligation of the Parent and the Merger Sub enforceable against the Parent and the Merger Sub in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency, and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies).

3.2.

No Conflict; Required Filings and Consents.

(a)         The execution and delivery of this Agreement by the Parent and the Merger Sub do not, and the performance of this Agreement by the Parent and the Merger Sub will not, (i) conflict with or result in any violation of the certificate or articles of incorporation or bylaws or equivalent organizational documents of the Parent or the Merger Sub, (ii) assuming satisfaction of the requirements set forth in Section 3.2(b) below, conflict with or result in any violation of any federal, state, local, and foreign law, ordinance, regulation, interpretation, judgment, decree, injunction, permit, license, certificate, governmental requirement, order, or any similar item of any court or other Governmental Authority applicable to the Parent and the Merger Sub or by which any property or asset of the Parent or the Merger Sub is bound or affected or (iii) result in any breach of, or constitute a default (or event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of the Parent or the Merger Sub pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation, except for any such conflicts, violations, breaches, defaults or other occurrences that would not adversely affect or materially delay the ability of the Parent or the Merger Sub to carry out its obligations under this Agreement or the Merger Agreement.

 

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(b)         The execution and delivery of this Agreement by the Parent and the Merger Sub do not, and the performance of this Agreement by the Parent and the Merger Sub will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Authority, except (i) for applicable requirements, if any, of federal and state securities laws, state takeover laws and the premerger notifications of the HSR Act, (ii) for those required to be made with self-regulatory organizations and Governmental Entities regulating brokers, dealers, investment advisors, investment companies, banks, trust companies and insurance companies and (iii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not adversely affect or materially delay the ability of the Parent or the Merger Sub to carry out its obligations under this Agreement or the Merger Agreement.

ARTICLE IV

COVENANTS OF THE SHAREHOLDER

4.1.      Restriction on Disposition or Encumbrance of Shares. The Shareholder hereby agrees that, except as contemplated by this Agreement or except with the prior written consent of the Parent, the Shareholder will not, other than pursuant to the terms of this Agreement or the Merger Agreement, (i) make any sales, gifts, transfers, pledges, or other dispositions of Company Common Stock subject to this Agreement (including any shares of Company Common Stock issued upon the exercise of Company Options), (ii) deposit any Company Common Stock subject to this Agreement (including any shares of Company Common Stock issued upon the exercise of Company Options) into a voting trust or enter into any voting agreement or arrangement or understanding with respect thereto, (iii) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition, sale, assignment transfer or other disposition of Company Common Stock subject to this Agreement (including any shares of Company Common Stock issued upon the exercise of Company Options) or (iv) take any action that could make any of its representations or warranties contained herein untrue or incorrect or could have the effect of preventing or disabling the Shareholder from performing any of its obligations hereunder. Notwithstanding anything herein to the contrary, the Shareholder may dispose of its Company Common Stock subject to this Agreement provided that the transferee has prior to such disposition agreed to assume all of the Shareholder’s obligations under this Agreement and to be otherwise bound by all provisions of this Agreement, including without limitation, the granting of an irrevocable proxy and the making of representations and warranties.

4.2.      No Announcements; No Solicitation of Transactions. Subject to and without prejudice to their fiduciary obligations as employees, officers or directors of the Company and except as permitted by the Merger Agreement, JANA Partners and the Shareholder agree that between the date of this Agreement and the Termination Time, JANA Partners and the Shareholder will not, and will use their reasonable best efforts to cause their members, directors, officers, employees, attorneys, accountants or financial advisors or other representatives (“Representatives”) retained by them not to, directly or indirectly through another Person, (i) issue any press release or make any other public statement or announcement with respect to the Merger Agreement, this Agreement, the Merger or any of the transactions contemplated thereby or hereby, except as may be required by applicable law including through amendments to any applicable Schedule 13D filed with the Securities and Exchange Commission; (ii) solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, or (iii) participate in any discussions or negotiations regarding any Acquisition Proposal; provided that the foregoing shall not limit or prohibit any Representative who is a director of the Company from exercising his or her fiduciary duty solely as a director of the Company in a manner consistent with the terms and conditions set forth in the Merger Agreement.

 

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4.3. Further Action. Upon the terms and subject to the conditions hereof, the Parent, the Merger Sub and the Shareholder will use their respective reasonable efforts to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective this Agreement, provided that with respect to the Shareholder such efforts shall be made upon the request and at the expense of the Parent and the Merger Sub.

4.4.      Dissenters’ Rights. The Shareholder hereby irrevocably waives any and all rights which its may have as to appraisal, dissent or any similar or related matter with respect to any of the Shareholder’s Shares which may arise with respect to the Merger, including, without limitation, under Sections 302A.471 and 302A.473 of the MBCA.

4.5.      Officers and Directors. Notwithstanding anything contained to the contrary in this Agreement, in the event a Representative is a director or officer of the Company, nothing in this Agreement is intended or shall be construed to require such Representative, solely in his or her capacity as a director or officer of the Company, to act or fail to act in any manner inconsistent with (i) his or her fiduciary duties in such capacity and (ii) the Merger Agreement. Furthermore, no Representative who is or becomes (during the term hereof) a director or officer of the Company makes any agreement or understanding herein solely in his or her capacity as a director or officer, and nothing herein will limit or affect, or give rise to any liability of any Representative solely in such Person's capacity as a director or officer of the Company.

ARTICLE V

TERMINATION

5.1.       Termination. Except for this Section 5.1, this Agreement, and all rights and obligations of the parties hereunder, will terminate, and no party will have any rights or obligations hereunder and this Agreement will become null and void and have no further effect upon the earlier of: (i) the Effective Time, (ii) the termination of the Merger Agreement for any reason (the earlier of such times, the “Termination Time”), (iii) March 31, 2007 and (iv) any material amendment to (including without limitation a decrease in or a change in the form of the consideration paid to shareholders or any addition of a material obligation or additional liability on the part of the Shareholder) or waiver of any material condition in the Merger Agreement. Nothing in this Section 5.1 shall relieve any party of liability for breach of this Agreement.

ARTICLE VI

MISCELLANEOUS

6.1.      Adjustments. In the event of any increase or decrease or other change in the Shares by reason of stock dividend, stock split, recapitalizations, combinations, exchanges of shares or the like, then the terms of this Agreement, including the term “Shares” as defined herein, will apply to the shares of capital stock and other securities of the Company held by the Shareholder immediately following the effectiveness of the such events.

6.2.     Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement were not performed in accordance with the terms hereof and that the parties will be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity.

6.3.      Expenses. All costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the

 

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transactions contemplated hereby will be paid by the party incurring such costs and expenses, whether or not the Closing will have occurred.

6.4.       Amendment. This Agreement may not be amended except by an instrument in writing signed by all the parties hereto.

6.5.      Waiver. Any party to this Agreement may (i) extend the time for the performance of any obligation or other act of any other party hereto, (ii) waive any inaccuracy in the representations and warranties of another party contained herein or in any document delivered pursuant hereto and (iii) waive compliance with any agreement of another party contained herein; provided, however, that any such extension or waiver will only be binding upon the party or parties granting such extension or waiver and any such extension or waiver will be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby.

6.6.      Assignment. This Agreement and the rights and obligations hereunder will not be assigned by operation of law or otherwise by any of the parties hereto without the prior written consent of the other parties hereto, except that the Parent and the Merger Sub may assign all or any of their rights and obligations hereunder to any directly or wholly-owned Subsidiary of Parent, upon written notice to the Shareholder if the assignee shall assume the obligations of Parent and/or Merger Sub hereunder. Subject to the foregoing, all the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto.

6.7.     Notices. All notices and other communications hereunder will be in writing and will be deemed given (a) on the date of delivery if delivered personally, or by telecopy or facsimile, upon confirmation of receipt, (b) on the first Business Day following the date of dispatch if delivered by a recognized next-day courier service, or (c) on the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder must be delivered as set forth below, or pursuant to instructions as may be designated in writing by the party to receive such notice:

(a)

if to the Parent or the Merger Sub, to it at:

ClientLogic Corporation

3102 West End Avenue, Suite 1000

Nashville, Tennessee 37203

Attention: Terrence Leve, Chief Legal Officer

Facsimile No.: 615-301-7252

 

with a copy (which will not constitute notice) to:

 

Mayer, Brown, Rowe & Maw LLP

1675 Broadway

New York, New York 10019

Attention: Mark S. Wojciechowski

Facsimile No.: (212) 262-1910

 

(b)

If to the Shareholder, to it, him or her at the address set forth on Schedule I.

 

 

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6.8.      Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the matters contemplated herein are not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner.

6.9.      Parties in Interest. The representation, warranties, covenants and agreements contained in this Agreement will be binding upon and inure solely to the benefit of each party hereto, and their respective successors and assigns, and nothing in this Agreement, express or implied, is intended to or will confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

6.10.    Entire Agreement. This Agreement and (only with respect to the parties other than the Shareholder) the Merger Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

6.11.     Governing Law. This Agreement will be construed in accordance with and governed by the law of the State of Minnesota (without giving effect to choice of law principles thereof).

6.12.     Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and will not affect in any way the meaning or interpretation of this Agreement.

6.13.    Counterparts. This Agreement may be executed and delivered (including by facsimile transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed will be deemed to be an original but all of which taken together will constitute one and the same agreement.

6.14.     Definitions. Capitalized terms used but not defined in this Agreement have the meanings assigned to such terms in the Merger Agreement.

 

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 The parties have duly executed this Voting Agreement as of the day and year first above written.

 

CLIENTLOGIC CORPORATION

By: /s/ David Garner

Name: David Garner

Title: President and Chief Executive Officer

STAGECOACH ACQUISITION CORPORATION

By: /s/ David Garner

Name: David Garner

Title: President

JANA PIRANHA MASTER FUND, LTD.

By: JANA Partners LLC, its Investment Advisor

 

By: /s/ Marc Lehmann

Name: Marc Lehmann

Title: Partner

 

 

 

JANA PARTNERS LLC

By: /s/ Marc Lehmann

Name: Marc Lehmann

Title: Partner

 

 

 

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SCHEDULE I

 

 

 

 

Name and Address of Shareholder

 

Number of Shares of Company

Common Stock Subject to this Agreement

JANA Piranha Master Fund, Ltd.

c/o JANA Partners LLC

200 Park Avenue, Suite 3300

New York, New York 10166

Attn: Charles Penner

(212) 692-7645

charlie@janapartners.com

 

Copy to:

Marc Weingarten, Esq.

Schulte Roth & Zabel

919 Third Avenue

New York, New York 10022

(212) 756-2280

Marc.Weingarten@srz.com

 

6,813,235

 

 

 

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