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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 12, 1996
SITEL CORPORATION
(Exact name of registrant as specified in its charter)
MINNESOTA 0-26152 47-0684333
(State or jurisdiction of (Commission File (I.R.S. Employer
incorporation or organization) Number) Identification No.)
13215 BIRCH STREET
OMAHA, NEBRASKA 68164
(402) 498-6810
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
____________________________________________
This 8-K consists of 49 pages. The Exhibit Index is on page 5.
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ITEM 2. ACQUISITION OF ASSETS.
On June 12, 1996, SITEL Hispanica, S.A., a wholly-owned subsidiary of
the Company organized under the laws of Spain, ("SITEL Spain") completed the
acquisition of 69.2% of the outstanding capital stock of Tele-Action, S.A.
("Tele-Action"), a Spanish teleservicing company with headquarters in Madrid,
Spain. The 69.2% interest was acquired from Pallas Union Investment Company
B.V., a European venture capital firm, ("Pallas"), Triana 24, S.L., a
Spanish company owned by two founders of Tele-Action, Vicente Lopez and
Antonio Diaz, ("Triana") and Messrs. Vicente Lopez, Antonio Diaz and Cesar
Lopez (collectively, the "Tele-Action shareholders"). The remaining 30.8% of
the outstanding capital stock of Tele-Action is held by the Tele-Action
shareholders.
SITEL Spain paid the Tele-Action shareholders approximately $15 million
in cash for the 69.2% interest and advanced Tele-Action approximately $9
million in cash which was used by Tele-Action to pay a dividend of that
amount to the Tele-Action shareholders at closing. SITEL Spain has agreed to
purchase the remaining 30.8% interest in Tele-Action in 1998 for a deferred
guaranteed payment of approximately $11 million and an additional contingent
purchase price which is based upon a multiple of Tele-Action's average
operating income in 1996 and 1997. The purchase price for the 30.8% interest
is payable in cash unless one or more of the Tele-Action shareholders elect
payment in SITEL Common Stock. The underlying assets of Tele-Action over
which SITEL Spain acquired control through the acquisition consisted
principally of cash, accounts receivable, fixed assets and leasehold
improvements, contract rights, and goodwill.
The Company expects Tele-Action to continue the same business activities
under the Company's ownership as prior to the acquisition. The Company based
the purchase price for the initial 69.2% interest in Tele-Action principally
upon a multiple of the past operating income of Tele-Action. The purchase
price for the remaining 30.8% interest in Tele-Action is based principally
upon a multiple of the average operating income of Tele-Action in 1996 and
1997, but no less than the deferred guaranteed payment of approximately $11
million. The Company's working capital provided the funds used to make the
acquisition of the initial 69.2% interest.
The terms of the acquisition are described in more detail in the Stock
Purchase Agreement dated June 12, 1996, a copy of which is attached as an
exhibit to this Form 8-K.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statements of businesses acquired.
It is impracticable for the Company to provide the required
financial statements at this time. The Company will file the required
financial statements as an amendment to this Form 8-K as soon as
practicable, and no later than 60 days after the due date of this Form 8-K.
(b) Pro forma financial information.
It is impracticable for the Company to provide the required pro
forma financial information at this time. The Company will file the
required pro forma financial information as an amendment to this Form 8-K
as soon as practicable, and no later than 60 days after the due date of
this Form 8-K.
(c) Exhibits.
The exhibits filed as a part of this Form 8-K are:
Exhibit
No.
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2.2 Stock Purchase Agreement dated June 12, 1996
regarding acquisition of Tele-Action, S.A.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: June 27, 1996 SITEL Corporation
By: /s/ Michael P. May
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Michael P. May
President
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SITEL CORPORATION
EXHIBIT INDEX
Page Number
In Sequential
Numbering
Exhibit System
No. -------------
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2.2 Stock Purchase Agreement dated
June 12, 1996 regarding acquisition of
Tele-Action, S.A. 5
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EXHIBIT 2.2
Stock Purchase Agreement dated June 12, 1996
regarding acquisition of Tele-Action, S.A.
The exhibits to the Stock Purchase Agreement,
which are identified therein, have been
omitted pursuant to Item 601 of Regulation S-K.
The registrant undertakes to furnish supplementally
a copy of any of such omitted schedules to the
Securities and Exchange Commission upon request.
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STOCK PURCHASE AGREEMENT
OF
TELE-ACTION, S.A.
In Madrid, on June 12, 1996.
BY AND BETWEEN:
SITEL CORPORATION, a Company duly organized and validly existing in accordance
with the laws of Minnesota (USA), having its corporate registered office at
13215 Birch Street, Omaha, NE 68164, USA, duly represented herein by Mr. Barry
Major, pursuant to powers of attorney a copy of which is attached as Exhibit 1
(hereinafter called "SITEL CORP.");
SITEL HISPANICA, S.A., a Company duly organized an validly existing in
accordance with the laws of Spain, having its registered office at Jose Abascal,
45, Madrid (Spain), pending registration, duly represented herein by Mr. Barry
Major, pursuant to powers of attorney a copy of which is attached as Exhibit 1
(hereinafter called the "BUYER"), and together with SITEL CORP. as parties of
the first part;
PALLAS UNION INVESTMENT COMPANY B.V., a Company duly organized and validly
existing in accordance with the laws of Netherlands, having its registered
office at Herengracht, 214, 1016 BS, Amsterdam, Holanda, duly represented herein
by Mr. Manuel Perez-Sala Gozalo, pursuant to powers of attorney a copy of which
is attached as Exhibit 2, (hereinafter called "PALLAS").
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TRIANA 24, S.L. a Company duly organized and validly existing in accordance with
the laws of Spain, having its registered office at Narciso Serra, 14, Madrid,
duly represented herein by Messrs. Vicente Lopez and Antonio Diaz, pursuant to
powers of attorney a copy of which is attached as Exhibit 2, (hereinafter
called "TRIANA").
MR. VICENTE LOPEZ LOPEZ, of age, domiciled at Narciso Serra 14, Madrid and with
National Identity Card number 51434803-H,
MR. ANTONIO F. DIAZ PONTE, of age, domiciled at Narciso Serra 14, Madrid and
with National Identity Card number 32359826-E,
MR. CESAR LOPEZ PEREZ, of age, domiciled at Narciso Serra, 14, Madrid and with
National Identity Card number 7489418-C,
as parties of the second part (TRIANA, PALLAS, Mr. Lopez, Mr. Lopez Perez and
Mr. Diaz Ponte all of them hereinafter collectively called the "SELLERS").
MR. LOPEZ LOPEZ, MR. DIAZ PONTE and MR. LOPEZ PEREZ, are sometimes hereinafter
collectively called the "FOUNDERS".
TRIANA AND PALLAS, are sometimes hereinafter collectively called the
"GUARANTORS".
WHEREAS:
I. TELE-ACTION, S.A. is a Company duly organized and validly existing in
accordance with the laws of Spain, having its registered office at Narciso
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Serra, 14 Madrid, and duly recorded at the Commercial Registry of Madrid at
page M-966 (hereinafter called the "COMPANY").
II. The COMPANY is engaged in the business of providing sales and marketing
services through the telephone system as well as through employees of the
COMPANY.
III. The COMPANY has a capital stock of FIFTY (50.000.000.-) million Pesetas,
represented by 5.000 registered shares, each having a par value of 10.000.-
Pesetas, all of which are fully paid-up (hereinafter the "SHARES"). The
SHARES are owned by the SELLERS as follows:
TRIANA: 3.050 shares or 61%
PALLAS: 1.750 shares or 35%
Mr. Lopez Lopez: 119 shares or 2'38%
Mr. Diaz Ponte: 80 shares or 1'60%
Mr. Lopez Perez: 1 share or 0'02%
IV. BUYER and SITEL CORP. with the cooperation of SELLERS, have:
a. carried out a legal due diligence of the COMPANY and of its
subsidiaries through J&A Garrigues, who have prepared the relevant due
diligence report, and
b. carried out a financial and tax due diligence of the COMPANY and its
subsidiaries for the year ended December 31, 1995 through Coopers &
Lybrand who have prepared their own report.
V. The SELLERS, are willing to sell the SHARES and the
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BUYER to purchase them.
Now the contracting parties, acknowledging their respective capacity to validly
enter into this Stock Purchase Agreement, execute it in accordance with the
following
CLAUSES:
FIRST.- SALE OF 69'20% OF THE SHARES. The SELLERS will sell and transfer to the
BUYER, who will purchase, on the Closing Date (as hereinafter defined), 3.460
shares of the COMPANY, representing 69'20% of the SHARES, free of any and all
charges, liens, options and/or other third party rights (said shares hereinafter
called the "69'20% SHARES"). Exhibit 3 sets forth the numbers of shares to be
sold by each of the SELLERS.
SECOND.- PRICE FOR THE 69'20% SHARES. The price to be paid for the 69'20% SHARES
will be fourteen million nine hundred and seventy four thousand three hundred
and fourty two (14.974.342) US dollars, which will be paid in full by means of
bankers drafts ("cheques bancarios") on the date of formalizing the transfer of
the stock before a Spanish Notary public or Stock-broker, which date will be the
date hereof (hereinafter called the "Closing Date"). Each of the SELLERS will
receive the portion of the price stated in Exhibit 3.
THIRD.- SALE OF 30'80% OF THE SHARES. The GUARANTORS will sell to the BUYER, and
the BUYER will purchase, 1.540 shares of the COMPANY, equivalent to an
additional 30'80% of the SHARES, which are those listed in Exhibit 4, within 15
days next following the second anniversary of the Closing Date (hereinafter
called the "30'80% SHARES" and
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the "Second Closing", respectively). The 30'80% SHARES will be sold to BUYER
free of any and all charges, liens, options and/or third party rights.
FOURTH.- PRICE FOR THE 30'80% SHARES. The price to be paid for the 30'80%
SHARES will be calculated in Pesetas in the following manner:
A. i) In the event that the COMPANY's average consolidated Ebitda (as
defined in Exhibit 5 and hereinafter called the "AVERAGE EBITDA")
during the calendar years of 1996 and 1997 would be in excess of 1.084
million Pesetas, then the price for the 30'80% SHARES will be equal to
30'80% of an amount equal to the AVERAGE EBITDA times 6.8, minus the
COMPANY's outstanding net debt as at December 31, 1997 up to a maximum
amount of 100 million Pesetas; outstanding net debt will be understood
as long and short term financial debt, excluding any debt incurred by
the COMPANY for the payment of the 1199 million Pesetas dividend and
outstanding as of that date, minus cash and marketable securities. The
AVERAGE EBITDA will be calculated by COOPERS & LYBRAND on the basis of
a full audit (to be paid by the BUYER), and revised, at SELLERS's
option and cost, by ARTHUR ANDERSEN, and any discrepancies between
them will be finally solved by PRICE WATERHOUSE.
ii) In the event that the COMPANY's AVERAGE EBITDA would be equal or less
than 1.084 million Pesetas, then the price for the 30'80% SHARES will
be 30'80% of an amount equal to the
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AVERAGE EBITDA times 5.8, minus the COMPANY's outstanding net debt as
at December 31, 1997, up to a maximum of 100 million Pesetas.
iii) In no case shall the price to be paid for the 30'80% SHARES be less
than 1.397.977.350.- Pesetas, of which 908.685.278.- Pesetas
correspond to TRIANA and 489.292.072.- Pesetas to PALLAS. The price
for the 30'80% SHARES shall be paid as indicated in paragraph B.
below.
B. TRIANA will be entitled to receive the payment for its shares either in
Pesetas in cash or in SITEL's stock, by notice in writing to SITEL, at
least 90 days prior to the Second Closing; should he (it) choose to receive
SITEL's stock, the calculation for the number of SITEL's shares will be
made on the average quoted value of SITEL's stock during the last 30
business days preceding the payment, taking into consideration the average
buyer/seller exchange rate Peseta to the Dollar in the Madrid Stock
Exchange during the last 30 days preceding the payment. Failure to provide
such notice by TRIANA shall be deemed a choice to receive the price in
cash.
C. PALLAS is hereby paid the sum of 489.292.072.- Pesetas, equivalent to the
minimum guaranteed portion of the purchase price for its share of the
30'80% SHARES, by means of a promissory note guaranteed by BARCLAYS BANK,
S.A. a copy of which is attached hereto as Exhibit 5 bis. PALLAS does
hereby formally acknowledge having received full payment in respect of
said amount. Given that PALLAS has
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agreed with BANKINTER, S.A. the assignment to the latter of the right to
collect said amount of 489.292.072.- Pesetas, PALLAS hereby instructs BUYER
to issue the promissory note in the name of BANKINTER, S.A.
D. BUYER, SITEL CORP. and the FOUNDERS hereby undertake to make their best
efforts to achieve a minimum AVERAGE EBITDA of 1084 million Pesetas and to
diligently manage the COMPANY towards that target.
FIFTH.-
This Clause Fifth is left without any wording or contents.
SIXTH.- AUDIT AS AT MAY 31, 1996. It is agreed that Coopers & Lybrand, S.A.
shall audit, at BUYER's cost, the balance sheet of the COMPANY as at May 31,
1996 and the profit and loss account for the period between January 1 and May
31, 1996 (hereinafter called the "AUDIT"). The results of the AUDIT will be
reviewed by Arthur Andersen on behalf of the SELLERS and at their own cost. The
AUDIT will be conducted applying the same accounting principles and criteria
applied in the preparation of the accounts for the year 1995, and no provisions
will be made applying different principles and criteria nor in respect of
liabilities or contingencies disclosed in any of the Exhibits. The AUDIT will be
finished not later than July 15, 1996.
In the event that the net equity of the COMPANY as at May 31, 1996 resulting
from the AUDIT would be less than 60'2 million Pesetas, after deducting the
1199 million Pesetas dividend declared by the COMPANY and referred to in Clause
Eleventh C.3 (ii) hereof), SELLERS shall
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reimburse BUYER any shortfall on a Peseta to Peseta basis, and the payment will
be made in US dollars at the exchange rate of 129,6825.- Pesetas to the dollar,
once the parties herein have received the AUDIT report.
Should the SELLERS disagree with some of the results of the AUDIT, any
discrepancy shall be finally and definitely settled by Price Waterhouse, and
SELLERS and BUYER accept the decision of Price Waterhouse as final and binding
upon them, hereby expressly waiving any right of appeal before any jurisdiction,
including arbitration proceedings.
SEVENTH.- REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
The SELLERS represent and warrant to the BUYER as follows:
A. TITLE TO THE SHARES AND AUTHORITY TO SELL.
SELLERS represent and warrant to BUYER that they have as of the date
hereof:
(a) full legal title and ownership to the SHARES, free and clear of any
options, liens, encumbrances, commitments, or of any rights or
interest therein in favour of any other parties;
(b) full right, power and authority to sell, transfer and deliver to BUYER
the SHARES at the time and manner agreed herein;
(c) all the necessary legal authority and capacity to enter into this
Agreement and to consummate the provisions hereof;
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and further, that neither SELLERS nor the COMPANY are subject to any
restriction of any character which would prevent their entering into and
consummating the transactions herein contemplated since the SELLERS hereby
waive all the rights that they enjoy under the by-laws of the COMPANY in
respect of the transfer of the SHARES.
B. ORGANIZATION AND STANDING.
The COMPANY is a corporation duly organized, validly existing and in good
standing under the laws of Spain and has the corporate power to own its
property and to carry on its business as now conducted.
C. PERMITS AND LICENSES.
The COMPANY has obtained all of the operation permits, licenses and any
other governmental or regulatory authorization required to engage in its
present activities, including, but not limited to, operating licenses,
authorizations, etc. The COMPANY complies in all material respects with all
applicable safety and/or regulatory laws and regulations. Copies of
licenses etc., where appropriate, are attached hereto as Exhibit 6.
D. BY-LAWS.
Complete copy of the By-laws of the COMPANY, as amended to date, are
annexed hereto as Exhibit 7.
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E. CAPITAL STOCK.
The total issued and outstanding capital stock of the COMPANY is
50.000.000.- Pesetas and it is represented by 5.000.- shares, common,
registered, each having a par value of 10.000.- Pesetas (in this Agreement
called the SHARES"). The SHARES represent 100% of the issued and
outstanding capital stock of the COMPANY, and all the SHARES have been duly
and validly issued and are fully paid.
F. ABSENCE OF OPTIONS AND WARRANTS.
There are no outstanding options, warrants, conversion rights or any other
rights issued by the COMPANY to purchase or convert any obligation into
shares of the COMPANY stock and, as of the date of this Agreement, the
COMPANY has not otherwise resolved to issue or sell any new or existing
shares of its stock.
G. BUSINESS OF THE COMPANY.
The COMPANY is engaged in the business of providing sales and marketing
services through the telephone system as well as through employees of the
COMPANY. The COMPANY's registered office is located at Narciso Serra, 14,
Madrid, Spain.
H. SUBSIDIARIES.
The COMPANY has the participation in subsidiaries as described in Exhibit
8.
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I. FINANCIAL STATEMENTS.
The Audited Balance Sheet of the COMPANY as of December 31, 1995, its
Audited Profit and Loss Account for the year 1995, the Balance of TELE
PROMOTION, S.A. as of December 31, 1995 and its Profit & Loss Account for
the year 1995 (hereinafter called the "FINANCIAL STATEMENTS"), a copy of
which is attached hereto as Exhibit 9, (i) fairly present the financial
position and results of operations of the COMPANY and of TELE PROMOTION,
S.A. as of the date thereof and the periods covered thereby, (ii) reflect
all assets owned by the COMPANY and TELE PROMOTION, S.A. as of the date
thereof; and (iii) reflect all claims against and the debts and liabilities
of the COMPANY and of TELE PROMOTION, S.A. as of the date thereof which
under Spanish generally accepted accounting principles should have been
reflected in the FINANCIAL STATEMENTS.
J. TITLE TO REAL PROPERTY.
The COMPANY owns the real properties described in Exhibit 10, and they are
subject to no mortgages, other "derechos reales de garantia" or
reservations of ownership, except as set forth in such Exhibit. Attached to
Exhibit 10 is a complete copy of the acquisition title of the real
properties owned by the COMPANY.
K. TITLE TO ASSETS.
The COMPANY owns outright and has full legal title to all properties and
assets reflected in the FINANCIAL STATEMENTS as owned by it, subject to no
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mortgages, pledges, "derechos reales de garantia", or other reservations of
ownership, other than as set forth in Exhibit 11.
L. LEASES.
Exhibits 12 and 13 hereto contain true and complete copies of all contracts
relative to all real or personal properties leased or subleased to or by
the COMPANY, and each such lease is in full force and effect with no
material defaults thereunder, and the present transaction will have no
significant adverse effect on any of the material leases contained in
Exhibits 12 and 13.
M. ABSENCE OF CERTAIN TAX WAIVERS.
There are not now in force any waivers or agreements by the COMPANY for the
extension of time for the assessment of any tax (as defined in Sub-Clause
7. CC.) or to postpone compliance of any of its tax obligations.
N. ABSENCE OF CHANGES.
Since December 31, 1995, there has been no material adverse changes in the
net worth of or in the business, operations or condition, financial or
otherwise, of the COMPANY, except as set forth in Exhibit 14.
O. LITIGATION.
There are no actions, suits, investigations, or proceedings pending or
threatened, in writing,
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against or affecting or which may affect the COMPANY, in any court or by or
before any governmental body or agency, including tax authorities and/or
tax jurisdictions, and the COMPANY is not subject to any order, court
judgement or decree, arbitration award, stipulation or consent to any
agreement with any governmental body or agency which affects or may affect
the business or operations of the COMPANY, except as stated in Exhibit 15.
P. FINDERS FEE.
This Agreement has been made and the negotiations leading to it were
initiated and have been carried out without the intervention, of any
broker, finder or other similar person, other than Baring Brothers
International Ltd., whose fees will be fully borne by the SELLERS, except
for their retainer fees paid by the COMPANY for services rendered prior to
December 31, 1995.
Q. CONTRACTS.
(a) A list of all outstanding contracts, together with a copy thereof,
presently in force with the COMPANY and involving an amount of more
than 5 million Pesetas or having a residual duration of more than a
year from the date hereof is herewith attached as Exhibit 16.
All the contracts listed are in full force and effect, without known
material default by any of the parties thereto and are enforceable in
accordance with their terms.
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(b) The COMPANY is not a party to any material agreement for the supply or
receipt of technology or technical assistance except as listed in
Exhibit 17 and the transactions contemplated in this Agreement will
have no effect on the continuity thereof unless otherwise indicated in
Exhibit 17.
(c) The COMPANY is not in default under any contract, agreement, lease,
mortgage or other instrument, or other obligations however created, to
which it is a party or by which it may be bound or to which it is
subject, except as stated in Exhibit 18.
(d) SELLERS have no knowledge or reason to believe that any of its current
substantial customers or suppliers would cease to trade with the
COMPANY or would substantially reduce trade or materially change their
relationship with the COMPANY because of this Agreement.
R. CANCELLATION OF CONTRACTS.
Except as set forth in Exhibit 19, there are no contracts having clauses
which allow the right to the respective counterparts to cancel the
respective contracts and/or to be entitled to receive any compensation
because of the Agreement.
S. DIRECTORS.
The name and annual compensation of the present directors of the COMPANY is
set forth in Exhibit 20.
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Other than the amounts indicated in said Exhibit 20 the COMPANY is not
obligated to pay any compensation nor is liable for any amount of money for
whatever reason to any present or former director of the COMPANY.
T. POWERS OF ATTORNEY.
All powers of attorney granted by the COMPANY, of whatever kind, which are
presently in force are listed in Exhibit 21.
U. INSURANCE.
The COMPANY has maintained up to the date hereof adequate insurance on its
personnel, as required by law or by legally binding agreement. The COMPANY
has maintained up to the date hereof adequate insurance to carry on its
business. Such insurance policies, a copy of which is attached hereto as
Exhibit 22, are in full force and effect and are in line with good
management practices and the relevant contracts have been regularly
fulfilled. The GUARANTORS' representation regarding the adequateness of the
COMPANY'S insurance will expire 60 days from the date hereof.
V. PATENTS, TRADEMARKS AND TRADENAMES.
The COMPANY has registered and owns the exclusive rights to use the
tradenames, trademarks, patents and other industrial property rights listed
in Exhibit 23. Except as set forth in Exhibit 23 the operations of the
COMPANY neither use nor require license under any patents, copyrights,
trademarks,
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or tradenames, and SELLERS have no knowledge of any rights of third parties
with respect to any patent, patent application, invention or device which
would materially reduce the sales of or affect adversely any material
methods, of providing services now rendered.
W. ACCOUNTS RECEIVABLE.
The accounts receivable of the COMPANY included in the FINANCIAL STATEMENTS
as well as those generated since December 31, 1995 until the date hereof:
(a) are true, accurate and genuine obligations collectible in the
aggregate to the extent of their full face value; and
(b) have been, or will be, fully collected by the COMPANY, except for: (Y)
the reserves set out in the FINANCIAL STATEMENTS for the accounts
receivable generated on or before December 31, 1995, or in the books
and accounting records of the COMPANY for those generated after
December 31, 1995, and (Z) the proceeds of the collection of those
accounts receivable which have been set out in the FINANCIAL
STATEMENTS or in the books and accounting records of the COMPANY since
December 31, 1995.
X. CONSULTANTS.
All the COMPANY's consultants, including financial advisors, accountants,
auditors and attorneys, are listed in Exhibit 24, together with adequate
information (including duration and compensation) on
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the relevant contracts, if any.
Except as set forth in said Exhibit 24, there are no agreed or foreseeable
compensations or commission payments to or any present or former consultant
of the COMPANY.
Y. PERSONNEL, UNION CONTRACTS AND BENEFIT PLANS.
(a) Attached hereto as Exhibit 25 is a complete list of all the employees
of the COMPANY indicating their position, seniority and present annual
compensation, as well as their condition of fixed, temporary or
partial time employees.
(b) Except as described in Exhibit 26, the COMPANY has no collective
bargaining contracts, no labour union representation or contests, nor
any other material labour difficulties in effect, or threatening.
(c) Except as described in Exhibit 26, the COMPANY has no pension plan or
profit sharing plan in effect as of the date of this Agreement.
Z. BANK ACCOUNTS AND LOANS. GUARANTEES.
(a) Exhibit 27 sets forth all bank accounts maintained by the COMPANY
together with the names of the authorized signatories on each such
bank account.
(b) Exhibit 28 sets forth all loans owed by the COMPANY to any bank or
financial institution
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and all lines of credit, as well as discount facilities, granted to
the COMPANY and the terms and conditions thereof.
(c) Exhibit 28 also specifies all guarantees and/or letters of patronage
in force issued by SELLERS and/or other persons in favour of the
COMPANY's banks to cover loans made and/or credits granted to the
COMPANY.
AA. INDEBTEDNESS OF OTHERS.
Except as indicated in Exhibit 28, the COMPANY is not a guarantor nor
indemnitor for any indebtedness of any other person, firm or corporation,
except as endorser of checks of commercial paper received and deposited or
discounted in the ordinary course of business.
BB. COMPLIANCE WITH LAWS.
The COMPANY is in compliance in all material respects with:
(a) all applicable laws and regulations including, but no limited to,
employment practices, terms and conditions, or unfair labour
practices, exchange control and antitrust.
(b) all applicable data protection, zoning, and other general, regional or
local laws, regulations or covenants, concerning the services rendered
by the COMPANY as well as the properties, buildings, fixtures and
equipment, owned or leased by the COMPANY. SELLERS have no
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knowledge of any pending or proposed legislation or regulatory changes
which would materially affect the business, activities or properties
of the COMPANY as presently conducted.
CC. TAXES.
For the purpose of this Agreement, the term tax or taxes includes, but is
not limited to, direct or indirect national and local taxes of any kind,
custom duties, other governmental charges, and penalties and interest
thereon.
The COMPANY has filed, or caused to be filed, for correct amounts with the
appropriate authorities and complying with existing regulations in all
material respects, all tax declarations or the like required by law to be
filed; no tax claim or proceeding or the like is pending or has been
notified or is otherwise in progress, except as set forth in Exhibit 29;
all direct taxes which are due and payable by the COMPANY for all years up
to the date hereof have been paid or adequately reserved for, as the case
may be; all indirect and other taxes due and payable by the COMPANY in the
period up to the date hereof have been regularly paid or reserved for, as
the case may be; and, in general, the COMPANY has been and will be up to
the Closing Date in compliance with all obligations arising from Spanish
laws and regulations in tax matters, as well as from such laws and
regulations of any other applicable jurisdiction.
Complete and correct copies of the income tax
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returns of the COMPANY for the 1994, 1993, 1992, 1991 and 1990 fiscal years
have been prior to the date hereof delivered to the BUYER.
DD. SOCIAL SECURITY CHARGES.
The COMPANY has filed and performed all declarations, returns and other
accomplishments or requirements with respect to social security and welfare
laws and regulations; all social and welfare charges and contributions of
the COMPANY, as well as those charges of their employees to be withheld by
the employer, have been paid or withheld, as the case may be, in full, as
soon as they come due; and, except as set forth in Exhibit 30 no claim or
proceeding is pending has been notified or is otherwise in progress or
threatened with regard to social security and contributions.
EE. GOVERNMENTAL SUBSIDIES (SUBVENCIONES).
The COMPANY has not obtained, nor has applied for, any governmental
subsidies.
FF. NO UNDISCLOSED LIABILITIES.
The COMPANY has no liabilities whatsoever, either accrued, absolute,
contingent or otherwise, and do not know of any basis for any past,
present or future claim against the COMPANY for any liabilities incurred
prior to the date hereof, except to the extent disclosed in the FINANCIAL
STATEMENTS or recorded in the books and accounting records of the COMPANY
if incurred after December 31, 1995 and except for liabilities under
contracts or
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commitments referred to and disclosed in the Agreement or any Exhibit
hereof.
GG. ZONING AND SIMILAR MATTERS.
None of the offices, buildings, or equipment of the COMPANY or the
operations or maintenance thereof violates any zoning ordinance,
regulation, restrictive covenant or any provision of laws, the enforcement
of which would in any material respect interfere with the continued
operations of the business of the COMPANY substantially in the manner in
which the business is now being conducted, or would materially affect the
value of the COMPANY properties and assets. All of the offices, buildings
or equipment of the COMPANY which are necessary for the normal operations
of the business are in good operating condition and in a state of
reasonable maintenance and repair.
HH. SERVICES.
None of the services being offered by the COMPANY is in violation of any
applicable law or regulation, including the legislation protecting the
personal data of individuals, applicable to the business and activities of
the COMPANY.
EIGHTH.-
A. All the representations and warranties set forth in Clause Seventh above
are applicable, "mutatis mutandis", to the subsidiaries listed in Exhibit
8.
B. As an exception to A. above, GUARANTORS will only be
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liable to BUYER in respect of Action Data Base, S.A. and Action Servicos de
Publicidade, S.A., up to the value attributed to each of them,
respectively, in the FINANCIAL STATEMENTS.
NINTH.- ACTIONS FOLLOWING DECEMBER 31, 1995.- SELLERS represent and warrant to
BUYER that since December 31, 1995, the COMPANY has carried on its business and
operations in the ordinary course and has used its best efforts to conduct its
business efficiently and retain intact its business organization and, in
particular, but not by way of limitation, has not, except as stated herein or in
the Exhibits hereto:
(a) Declared or paid any dividend or made any distribution to its Stockholders,
except for a dividend in the gross amount of 1.199.000.000.- Pesetas
declared and paid at the Annual Shareholders Meeting held today.
(b) Except as contemplated herein, issued or sold any shares of its capital
stock, or granted or made any option, warrant, or any other right to
purchase or convert any obligation into shares of capital stock.
(c) Except in the ordinary course of business incurred any obligation for money
borrowed, including any new discount lines, or mortgage, pledged or
otherwise subjected to any other "derecho real de garantia" any of the
assets of the COMPANY, or acquired or disposed of any real property.
(d) Made any investment in the share capital of any firm, entity, or
corporation, exceeding the sum of 20.000.000.- Pesetas per transaction.
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(e) Modified any employment contracts with any of its managers or made,
adopted, altered, revised or amended any pension, bonus, profit-sharing, or
other employee benefit plan, or granted any material salary increase, bonus
or termination compensation to any person, save as specified in Exhibit 31.
(f) Except in the ordinary course of business, made any commitment in excess of
20.000.000.- Pesetas for a period longer than one year, entered into any
commitments or contracts in excess of 20.000.000.- Pesetas or renewed,
extended, modified, terminated or waived any material right under any
present commitment or contract, except as specified in Exhibit 32.
(g) Except in the ordinary course of business entered into, renewed, extended,
modified, terminated, or waived any significant right under any material
lease, license, or concession, except as specified in Exhibit 33.
(h) Made any expenditure for, or incurred any obligations in respect of, fixed
assets, fixtures and other capital items (except those expenditures and
obligations occurring in the ordinary course of business not exceeding
20.000.000.- Pesetas on any individual item) and/or except as set forth in
Exhibit 34.
(i) Except as contemplated hereby or in the ordinary course of business,
entered into or engaged in any transaction with SELLERS and/or any
corporation, person, or other entity, controlled by or under common control
with the COMPANY including, without
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limitation, repayment of any indebtedness to any of such SELLERS,
corporation, person or other entity.
(j) Made any payments in respect of any liabilities or obligations except in
the ordinary course of business.
(k) Made any amendment to its By-Laws or merged or consolidated with or sold
all or substantially all its assets to, any other corporation, or changed
the character of its business.
TENTH.- GENERAL QUALIFICATIONS.
A. The representations and warranties made by SELLERS under Clauses 7, 8 and 9
are not made or given, and shall not be interpreted and given effect as if
the same were made or given, independently from the provisions and
information contained or referred to in this Agreement. SELLERS, therefore,
shall not be liable for breaches of warranties or undertakings in respect
of facts that are contemplated in this Agreement, or disclosed in the
Exhibits hereto.
B. The representations and warranties made by SELLERS under Clause 7 referring
to the FINANCIAL STATEMENTS shall not cover the accounting treatment given
to such factual situation, to the extent such accounting treatment is
acceptable under Spanish accounting standards as applied by the COMPANY in
the previous years.
C. SELLERS make no representation or warranty to the BUYER or SITEL CORP.,
express or implied, with respect to any matter in connection with the
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purchase and sale of the COMPANY or this Agreement except as set forth in
Clauses 7, 8 and 9.
D. BUYER and SITEL CORP. agree that the representations and warranties made by
SELLERS in Clauses 7, 8 and 9 and the corresponding indemnification
provisions in this Agreement, substitute in full and will, thus, exclude
the application of, the rights and remedies available under the Spanish
Civil and Commercial Code in respect of SELLERS' contractual obligations in
general, and under sale and purchase contracts in particular, including the
right to claim for "SANEAMIENTO POR VICIOS OCULTOS".
The BUYER is entitled to claim remedies available under the Civil and
Commercial Codes against the responsible SELLERS only in respect of defects
in the title to their respective SHARES being sold to the BUYER
("SANEAMIENTO POR EVICCION").
E. BUYER and SITEL represent and warrant to the SELLERS that the BUYER is
purchasing the SHARES in the COMPANY on the basis of the terms of the
warranties and undertakings given by the SELLERS in Clauses 7, 8 and 9
above, and on the basis of the remedies and indemnification provisions
agreed with SELLERS and contained in this Agreement.
ELEVENTH.- ACTIONS TO TAKE PLACE AT THE CLOSING DATE.
A. At the Closing Date SELLERS shall:
1. Formalize the transfer of the 69'20% SHARES before the Spanish Notary
public or Stock-broker to that effect mutually designated by
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the parties, producing the relevant documents, including their
respective title ownership and certificates regarding the shares being
transferred.
2. Deliver the resignation of all the members of the Board of Directors
of the COMPANY, excluding Messrs Vicente Lopez and Antonio Diaz Ponte.
B. At the Closing, BUYER shall:
1. Deliver to each of the SELLERS banker's drafts in the amounts
indicated in Exhibit 3.
2. Cooperate with SELLERS in order to implement the transfer of the
69'20% SHARES.
3. Deliver to PALLAS a promissory note in the form attached as Exhibit 5
bis, representing the payment of 489.292.072.- Pesetas which is the
guaranteed portion of the purchase price to be received by PALLAS at
the Second Closing.
4. Cause the COMPANY to execute with TRIANA a Services Agreement in the
form attached as Exhibit 35.
5. Lend to the COMPANY the sum of 1199 million Pesetas, which will be
used to pay the dividend described in C.3(ii) below.
C. At the Closing, SELLERS and BUYER shall:
1. Execute an Escrow Agreement in the form
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attached as Exhibit 36, it being understood that the FOUNDERS will not
be parties thereto.
2. Execute a Shareholders Agreement governing the management and
administration of the COMPANY between the Closing Date and the Second
Closing, in the form attached as Exhibit 37.
3. Hold a Special Shareholders Meeting in order to:
(i) approve the Annual Accounts for the year ended December 31,
1995 as well as the management of the COMPANY by the Board
of Directors.
(ii) Distribute a gross dividend in the amount of 1.199 million
Pesetas.
(iii) Appoint a new Board of Directors composed of six members,
four appointed by SITEL and two by TRIANA; and
(iv) Amend the COMPANY's by-laws, which will be drafted in the manner
attached as Exhibit 38.
TWELTH.- CONDITIONS TO THE CLOSING. The Closing of the transaction shall take
place in Madrid on the date hereof and simultaneously to the execution of the
Agreement, provided that each and all of the following conditions precedent will
have been met:
A. That the business and financial condition of the
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COMPANY will not have been substantially affected in a negative manner,
since December 31, 1995.
B. That all the Representations and Warranties offered by SELLERS in this
Agreement will continue to be true, complete and correct as at the Closing
Date.
C. That any and all consents, authorizations and permits from the relevant
authorities and regulatory bodies, including the prior verification of this
transaction by the Ministry of Economy and Finance of Spain, will have been
obtained.
THIRTEENTH.- SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
All the representations and warranties made by SELLERS in this Agreement or in
any Exhibit hereto shall survive the Closing Date for a period:
A. Which will expire two years after the date hereof in the case of all
matters not covered by Sub-Clause 7.CC.- Taxes and Sub-Clause 7.DD.- Social
Security Contributions; and
B. Which will expire together with the respective statute of limitations in
the case of matters covered by Sub-Clause 7.CC.- Taxes and Sub-Clause
7.DD.- Social Security Contributions.
FOURTEENTH.- BUYER'S AND SITEL CORP'S REPRESENTATIONS AND WARRANTIES. BUYER and
SITEL CORP. represent and warrant to SELLERS as follows:
A. SITEL is a corporation duly organized, validly
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existing and in good standing under the laws of Minnesota, USA, and the
shares representing its capital stock are quoted and listed in the NASDAQ.
B. BUYER is a corporation duly organized and in the process of being
registered under the laws of Spain and its shares are fully owned directly
or indirectly by SITEL CORP.
C. BUYER has full right, power, capacity and authority to purchase the 69'20%
SHARES and the 30'80% SHARES and to pay cash and/or SITEL CORP. stock in
exchange as agreed herein, to enter into, execute and deliver this
Agreement and to consummate the transactions contemplated herein; BUYER is
not subject to any restriction which would prevent BUYER from entering into
this Agreement and consummating the transactions herein contemplated; and
this Agreement is the valid and binding obligation of BUYER enforceable
against BUYER in accordance with its terms.
D. SITEL is duly authorized to execute this Agreement and to assume its
obligations hereunder.
E. This Agreement is made and the negotiations leading to it were initiated
and have been carried out without the intervention on BUYER's behalf of any
broker, finder or any similar person, other than Alex. Brown & Sons,
Incorporated whose fees will be fully borne by BUYER.
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FIFTEENTH.- SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF BUYER.
All representations and warranties made by BUYER in this Agreement or any
Exhibit hereto or on any document furnished or required to be furnished pursuant
to this Agreement by BUYER to SELLERS shall survive the Closing Date for a
period of two years following the date hereof.
SIXTEENTH.- DISCLOSURE AND RELIANCE.
A. SELLERS represent and warrant to BUYER that:
(a) No representation or warranty by SELLERS in this Agreement nor any
Exhibit hereto binding upon SELLERS contains any untrue statement or a
material untrue fact or omits to state a material fact necessary to
make the statements contained therein not misleading.
(b) The foregoing representations and warranties are made by SELLERS with
the knowledge and expectation that BUYER is placing complete reliance
thereon.
B. BUYER represents and warrants to SELLERS that:
(a) No representation or warranty by BUYER in this Agreement nor any
Exhibit hereto, nor any statement, schedule or certificate furnished
to SELLERS pursuant hereto or in connection with the transactions
contemplated hereby, contains any material untrue statement or a
material fact, or omits to state a material fact necessary to make the
statements contained
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therein not materially misleading.
(b) The foregoing representations and warranties are made by BUYER with
the knowledge and expectation that SELLERS are placing complete
reliance thereon.
SEVENTEENTH.- HOLD HARMLESS CLAUSE.
A. Without prejudice of the purchase price adjustment established in Clause
Sixth hereof, GUARANTORS agree to indemnify and hold BUYER harmless in the
percentages of 65% (sixty five) percent in the case of TRIANA and 35%
(thirty five) percent in the case of PALLAS, with respect to the full
amount of any loss or damage suffered or incurred by the COMPANY or by
BUYER relating to the period prior to the Closing Date, as well as all
reasonable costs and expenses (including attorney's fees) incurred by the
COMPANY in connection with any suit, proceeding, assessment, action or
judgement relating to any of the matters indemnified against in this Sub-
Clause 17(A), to the extent that said damages, losses or costs result from
the breach, omission or inaccuracy of any representation or warranty of
SELLERS contained herein, or in the Exhibits hereto binding upon SELLERS.
The representations set forth in Sub-Clause 7.CC.- Taxes and 7.DD.- Social
Security Contributions, are excluded from the scope of this Sub-Clause 17-A.
The indemnification obligation assumed by GUARANTORS in this Sub-Clause 17.A
will last until the second anniversary of the date hereof.
B. Without prejudice of the purchase price adjustment
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established in Clause Sixth hereof, GUARANTORS agree to indemnify and hold
BUYER harmless, in the percentages indicated in A. above, against the full
amount of any loss or damage suffered or incurred by the COMPANY and/or by
BUYER, relating to the period prior to the Closing Date, as well as all
reasonable costs and expenses (including attorney's fees) incurred by the
COMPANY and/or by BUYER in connection with any suit, proceeding,
assessment, action or judgement relating to any of the matters indemnified
against in this Sub-Clause 17B., to the extent that said damages, losses or
costs result from the breach, omission or inaccuracy of the representations
set-forth in Clauses 7.CC.- Taxes and/or Clause 7.DD.- Social Security
Contributions. The indemnification obligation assumed by GUARANTORS in this
Sub-Clause 17.B will last until the expiry of the statute of limitations
relating to the matters covered by Clause 7.CC.- Taxes and 7.DD.- Social
Security Contributions.
C. It is agreed that in the event of damages or losses suffered by the
COMPANY, BUYER's right to reimbursement will be exclusively limited to the
damages or losses suffered by the COMPANY on a Peseta to Peseta basis.
D. GUARANTORS and BUYER agree that BUYER shall only be entitled to any
reimbursement from GUARANTORS under Clause 17.A or 17.B, to the extent that
the damages or losses incurred by the COMPANY exceed the amount of the
provisions, generic or specific, included in the FINANCIAL STATEMENTS or in
the COMPANY's books of account as of the Closing Date.
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E. BUYER agrees to indemnify and hold harmless GUARANTORS against and with
respect of the full amount of any loss or damage arising on or within two
years from the date hereof and suffered or incurred by GUARANTORS because
of any breach, omission or inaccuracy of any representation or warranty of
BUYER contained herein, in any document furnished or required to be
furnished pursuant to this Agreement by BUYER to GUARANTORS or because any
document, furnished by BUYER pursuant thereto had been materially
incorrect.
F. It is further agreed that any payment made by the COMPANY with respect to
damages or losses for which the GUARANTORS should indemnify the BUYER as
per this Clause Seventeenth will be excluded from the calculation of
AVERAGE EBITDA.
G. It is further agreed that GUARANTORS' obligation to indemnify the BUYER
pursuant to this Agreement shall in no case exceed in the aggregate and for
any and all concepts the sum of four hundred and twenty million
(420.000.000.-) Pesetas, and therefore that the maximum responsibility
assumed by each of the GUARANTORS in this Agreement shall be:
TRIANA: 300 million Pesetas.
PALLAS: 120 million Pesetas.
H. It is agreed that the breach by BUYER or by any of the SELLERS of one or
more of its obligations hereunder shall not be construed, considered or
interpreted as a breach by any other party to this Agreement.
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I. It is further agreed that the obligations assumed by each of the SELLERS
under the terms of this Agreement are, in all cases, individual and several
("mancomunadas") and not joint ("solidarias").
EIGHTEENTH.- SECURITY.
A. As security for the fulfillment of GUARANTORS indemnification and
reimbursement obligations under Clause Seventeenth, concurrently with the
execution of this Agreement, an Escrow Agent mutually acceptable to BUYER
and GUARANTORS will execute an Escrow Agreement substantially in the form
attached as Exhibit 36 hereto, and GUARANTORS will deposit into the Escrow
319.500.000 Pesetas, in two escrow accounts (214.500.000.- Pesetas by
TRIANA and 105.000.000.- Pesetas by PALLAS). The funds in Escrow shall be
invested by the Escrow Agent as provided for in the Escrow Agreement, and
any earnings on those funds shall be distributed as provided in the Escrow
Agreement. The Escrow Agreement shall provide the procedure for
reimbursement of funds to BUYER and GUARANTORS, which shall be paid by the
Escrow Agent to BUYER or GUARANTORS as the case may be pursuant to the
Escrow Agreement.
B. BUYER and GUARANTORS agree that in the event that the COMPANY was the
subject of a tax audit ("inspeccion fiscal") after the Second Closing for
all the tax periods up to December 31, 1995, once the relevant amounts will
have been paid by GUARANTORS so that the COMPANY will be free from any tax
contingency up to the Closing Date, then they will cause the immediate
release by the Escrow Agent
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to the GUARANTORS of any sums held in escrow, except for any amounts
already blocked under the Escrow Agreement for claims not related to tax
matters, in which case any responsibility of GUARANTORS under Clause
Seventeenth, except in respect of said blocked amounts, will expire.
C. BUYER and GUARANTORS agree that BUYER, if need be the case, shall enforce
its remedies against GUARANTORS in the following order:
(a) First through the relevant generic or specific provisions of the
COMPANY included in the FINANCIAL STATEMENTS or in the books of
account of the COMPANY as at the Closing Date;
(b) Then, on the portion of the purchase price placed in escrow pursuant
to Clause Eighteenth A; and
(c) Once the remedies established in (a) and (b), above have been
exhausted, then on any other assets, present or future, of SELLERS, in
the understanding that the aggregate responsibility of the SELLERS
hereunder shall not exceed the amount set forth in Clause Seventeenth
G.
D. The BUYER will not be entitled to set-off any amount owed by any of the
GUARANTORS under this Agreement against the purchase price to be paid by
BUYER to the GUARANTORS in respect of the 30'80% SHARES on the Second
Closing. The BUYER irrevocably waives any right of set-off ("COMPENSACION")
to which it may be entitled under the Spanish Civil and Commercial Codes,
and represents and warrants to each of the
35
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GUARANTORS their absolute right and entitlement to receive in full, on the
Second Closing, the agreed purchase price in respect of the 30'80% SHARES
to be sold to the BUYER.
NINETEENTH.- CLAIMS UNDER THIS AGREEMENT.
(a) In connection with claims for indemnification under this Agreement other
than claims contemplated under (c) below, BUYER may make a claim by sending
notice within 20 business days, after the BUYER becomes aware of the fact
giving rise to the claim, to each of the GUARANTORS stating the nature,
basis and amount of the claim and enclosing a copy of the relevant
documents. Upon receipt of such notice, each of the GUARANTORS shall have
20 days in which to elect, by notice sent through their duly authorized
representative, to object to all or any part of the claim. Failure to give
such notice within the required 20 days period shall conclusively
constitute (i) rejection of BUYER's claim, and (ii) refusal by GUARANTORS
to pay the undisputed portion of the claim.
(b) To the extent that the parties have not agreed upon the validity of any
claim made under this Agreement within 25 days after the expiration of the
second 20 days notice period, the disputed claim (or the disputed part of
the claim) shall be settled by arbitration pursuant to Clause 29 and the
amount found to be due BUYER or the COMPANY shall be paid to BUYER or to
the COMPANY by GUARANTORS, as ordered in the respective arbitration award.
(c) In connection with any claim for indemnification
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under this Agreement which is based upon or involves any claim by a third
party against the COMPANY, BUYER agrees that BUYER will give to each of the
GUARANTORS immediate written notice of such third party claim and provided
that GUARANTORS so elect by notice in writing sent through their duly
authorized representative to BUYER within 20 days of BUYER's notice, unless
the legal term for answering the third party claim is shorter than said
twenty days, in which case GUARANTORS will have to give BUYER notice of
their decision to defend at least one full business day before the expiry
of said legal term, BUYER shall (i) permit GUARANTORS, at GUARANTORS' own
expense and through counsel of their own choosing, to defend such claim in
the name of the COMPANY; (ii) cooperate in full and cause the COMPANY to
cooperate in full with GUARANTORS in such defense, and (iii) not make any
appearance, communication, settlement, compromise or admission of liability
without the prior written consent of GUARANTORS; it is expressly agreed
that in the event of tax claims the COMPANY shall procure the issuance of
the necessary bank guarantees to carry-on with the defense, blocking, to
the extent necessary, and after having used the generic or specific
provisions in FINANCIAL STATEMENTS, the funds held in escrow pursuant to
Clause Eighteenth A. above, and any costs and/or expenses incurred by the
COMPANY, including the costs of any bonds or bank guarantees, in connection
with the defense of said claims shall be fully borne by GUARANTORS. If
GUARANTORS shall not elect, in the manner and within the term aforesaid, to
defend against such third party claim, then BUYER shall be free to defend,
settle or compromise, in whole or in part, the claim at
37
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BUYER's sole discretion, and GUARANTORS conclusively accept in advance the
decision adopted by BUYER on behalf of the COMPANY.
(d) In the event of a tax and/or social security audit of the COMPANY relating
to the period prior to the Closing Date, it is agreed that the COMPANY
will be represented by the person(s) to that effect appointed by
GUARANTORS.
(e) Notwithstanding the procedure set forth in paragraphs (a), (b) and (c)
above, any adjustment to the purchase price resulting from Clause Sixth
herein above will be governed by the procedure laid-out in said Clause
Sixth.
TWENTIETH.- GUARANTEE BY SITEL CORP.
SITEL CORP. does hereby unconditionally guarantee, with waiver of its rights of
"excusion, orden y division", the obligations undertaken by the BUYER in Clause
Fourth above.
TWENTY FIRST.- NON ASSIGNABILITY. Except as provided for in clause Fourth C.
above, this Agreement shall not be assignable by any party without the express
written authorization from the other party.
It is expressly agreed that the obligations assumed by the SELLERS hereunder
will be binding upon and shall be fully assumed by their respective heirs,
successors and assignees, or any other person or entity which may become the
owner of their respective shares in the COMPANY which are covered by this
Agreement.
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TWENTY SECOND.- MERGING OF PREVIOUS AGREEMENTS. This Agreement substitutes and
merges any previous agreement, either written or oral, among the parties with
respect to the purchase and sale of the SHARES.
TWENTY THIRD.- EXPENSES AND TAXES. Each of the parties will pay all expenses
incurred by it in connection herewith, including without limitation the fees of
its counsel and its financial advisors. Any taxes incurred in connection
herewith will be paid in accordance with Spanish law. Any notarial or
stockbroker's fees will be paid 50% by BUYER and 50% by SELLERS.
TWENTY FOURTH.- PRESS RELEASE-CONFIDENTIALITY. None of the parties hereto
without the prior written consent of the other party (which consent shall not be
unreasonably withheld) shall issue any press release or make any public
announcement of this Agreement or of the transactions contemplated hereby.
SELLERS and BUYER agree that each shall maintain a confidential status of this
Agreement for a period of five (5) years, except for the notices that BUYER or
SELLERS, may have to make in compliance with the Legislation applicable,
including the disclosure to their respective Directors and/or direct or indirect
shareholders or potential shareholders or investors. All technical information,
trade secrets or know-how disclosed pursuant to the terms hereof shall be kept
as confidential and SELLERS shall not make disclosure of such without the prior
written consent of BUYER, which consent shall not be withheld if such disclosure
is required by applicable law or regulation.
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TWENTY FIFTH.- FURTHER ACTION. Each party hereto agrees to execute such
additional documents or instruments or take any further action reasonably
requested by any other party hereto, as may be necessary or desirable to effect
the purposes of this Agreement and carry out its provisions.
TWENTY SIXTH.- NOTICES. All notices, consents and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or sent by
registered airmail (if from a place other than the same city to which it is
sent) registered ordinary mail (if from the same city to which it is sent), or
telefax to the parties at the addresses set forth below (or at such other
address as may be specified by notice given pursuant hereto) and shall be
effective: (a) if delivered personally when they are delivered: (b) in the case
of a letter sent by registered airmail or ordinary mail (as applicable), eight
(8) days after they are deposited in the mail, postage prepaid; (c) in the case
of a telefax, one (1) day after the telefax is sent:
(a) If to the BUYER:
SITEL CORPORATION
Attention Mr. Barry Major
13215 Birch Street
OMAHA, NE 68164
USA
Telefax number: 1-402-498-26.99
With copy to:
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J. & A. GARRIGUES
c/o Ignacio Urbistondo
C/Jose Abascal, no 45
28003 MADRID, SPAIN
Telefax number: 34-1-399.24.08
(b) If to the SELLERS:
TRIANA 24, S.L.
Attention: Mr. Vicente Lopez Lopez and
Mr. Antonio Diaz Ponte
Narciso Serra, 14
28007 MADRID - SPAIN
Telefax number: 34-1-322.65.22
, and
PALLAS UNION INVESTMENT B.V.
Attention: Mr. Manuel Perez-Sala
Plaza del Marques de Salamanca 9, 4o izda.
28006 MADRID, SPAIN
Telefax number: 1-575.94.68
TWENTY SEVENTH.- MODIFICATIONS IN WRITING. any modification of this Agreement
shall be valid only if in writing and duly executed by the parties hereto.
TWENTY EIGHTH.- GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of Spain.
TWENTY NINETH.- ARBITRATION. Any dispute, difference or question which may arise
at any time hereafter between the parties hereto out of or in connection with
this Agreement or the rights and liabilities of the parties hereto shall
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be finally settled by Arbitration in Law to be held in Madrid pursuant to the
rules of the December 5, 1988 Act on Private Arbitrations; the award shall be
rendered by three arbitrators, one appointed by GUARANTORS, one appointed by
BUYER and the third, who shall be the President, by mutual agreement of the
other two arbitrators, failing which the appointment will be made by the Dean of
the Madrid Bar Association; in the event that SELLERS could not reach an
agreement to appoint their arbitrator, then such arbitrator will be appointed by
the Dean of the Madrid Bar Association. Each of the GUARANTORS shall be entitled
to conduct its own legal defense in the arbitration proceeding. The procedure
shall be conducted in Spanish in Madrid. The final awards shall be binding upon
the parties. The arbitration award shall be issued within six months from the
date that the last arbitrator accepts the arbitral duties. Should it be
necessary, in particular with reference to the participation of the Courts in
the arbitration proceedings, the parties submit themselves to the Courts of
Madrid, expressly waiving the right that they may have to any other
jurisdiction.
THIRTIETH.- NON-COMPETE. Each of the SELLERS agrees that for a period of four
(4) years next following the date hereof, he (she) or it shall not directly or
indirectly either as an employee, agent, owner, partner or stockholder owning
more than 5% interest in the business concern, engage in any business activity
which is in any way competitive with the business now being conducted by the
COMPANY. Mr. Cesar Lopez Perez is expressly excluded from the non-compete
commitment contained herein. In the case of PALLAS, this commitment will be
limited to Spain and to direct investments the primary business activity of
which competes with the COMPANY present business activity.
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THIRTY FIRST.- HEADINGS. The headings of the Clauses and paragraphs of this
Agreement are intended merely to facilitate reading. They do not purport to
describe the contents of the respective Clauses or paragraphs of this Agreement
nor do they constitute covenants, terms or conditions of this Agreement. No
regard shall be given to the same in construing the covenants, terms and
conditions of this Agreement.
THIRTY SECOND.- COUNTERPARTS.
This Agreement is executed in four original counterparts. However, the parties
execute only one set of the Exhibits hereto, which is delivered to Mr. Manuel
Mellado, the Corredor de Comercio participating in this Contract, who then shall
deliver three authenticated sets of said Exhibits, one to BUYER, one to TRIANA
and the third to PALLAS.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in four
counterparts in the place and date first above written.
SITEL HISPANICA, S.A.
By
-----------------------
SITEL CORPORATION
By
-------------------------------
43
<PAGE>
PALLAS UNION INVESTMENT COMPANY, B.V.
By
-----------------------------------
TRIANA, 24, S.L.
By
--------------------------------------
- -------------------------------------------
VICENTE LOPEZ LOPEZ
- -------------------------------------------
ANTONIO F. DIAZ PONTE
- ------------------------------------------------
CESAR LOPEZ PEREZ
44
