<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 17, 1997
REGISTRATION NO. 333-28131
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
SITEL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
MINNESOTA 47-0684333
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification
No.)
</TABLE>
13215 BIRCH STREET
OMAHA, NEBRASKA 68164
(402) 963-6810
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
MICHAEL P. MAY
CHIEF EXECUTIVE OFFICER
SITEL CORPORATION
13215 BIRCH STREET
OMAHA, NEBRASKA 68164
(402) 963-6810
(Name, Address, Including Zip Code, and Telephone Number of Agent for Service)
------------------------------
COPIES TO:
TERESA A. BEAUFAIT
ABRAHAMS, KASLOW & CASSMAN
8712 WEST DODGE ROAD, SUITE 300
OMAHA, NEBRASKA 68114
(402) 392-1250
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS SOON AS
PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AND FROM
TIME TO TIME.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED BE REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, $.001 par............... 216,241 Shares $14.06 $13,304,148 $4,032
</TABLE>
(1) The Shares to be registered pursuant to this Registration Statement shall
also include any additional shares issued with respect to these Shares prior
to their sale under this Registration Statement as a result of stock splits
or stock dividends effected by the Registrant.
(2) Pursuant to Rule 457(c), the offering price and registration fee are
computed on the basis of the average of the high and low prices of the
Common Stock as reported by the New York Stock Exchange on May 27, 1997.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
PROSPECTUS
216,241 SHARES
SITEL CORPORATION
COMMON STOCK
------------------
All shares of Common Stock of SITEL Corporation ("SITEL" or the "Company"),
$.001 par value per share (the "Shares"), offered hereby are being sold by
certain of the Company's stockholders (the "Selling Stockholders"). See "Selling
Stockholders". The Shares are traded on the New York Stock Exchange under the
symbol "SWW". On May 29, 1997, the last sale price for the Shares as reported on
the New York Stock Exchange was $17.13 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 OF THIS PROSPECTUS FOR A DISCUSSION
OF CERTAIN ITEMS THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
This Prospectus is applicable to the public sale of Shares by the Selling
Stockholders. The Shares offered hereby are being registered and will be
distributed pursuant to Rule 415 of the Securities Act of 1933, as amended. The
Selling Stockholders may offer or sell such Shares from time to time upon terms
determined by the market or in privately negotiated transactions.
The Company is not engaging an underwriter in connection with the shelf
registration or offering of these securities. The Company will incur the
expenses of the registration of the Shares offered hereby, including filing,
printing, legal, accounting and miscellaneous expenses. The Selling Stockholders
will pay any sales commissions to the broker-dealers through whom they effect
the sale of Shares.
This Prospectus is dated [ ], 1997.
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY, AND SHOULD BE READ IN
CONJUNCTION WITH, THE MORE DETAILED INFORMATION AND FINANCIAL STATEMENTS AND
NOTES THERETO APPEARING ELSEWHERE IN THIS PROSPECTUS OR INCORPORATED BY
REFERENCE HEREIN. PROSPECTIVE INVESTORS ARE URGED TO READ THIS PROSPECTUS IN ITS
ENTIRETY. SEE "RISK FACTORS" FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE
CAREFULLY CONSIDERED IN EVALUATING AN INVESTMENT IN THE SHARES.
THE COMPANY
SITEL Corporation ("SITEL" or the "Company") is a global leader in providing
outsourced telephone-based customer service and sales programs on behalf of
large corporations. The Company handles calls in over 25 languages and dialects
from more than 9,000 workstations in more than 60 call centers located in North
America, Europe and the Asia Pacific region. SITEL communicates directly with
its clients' customers by responding to customer-initiated telephone calls and
by making Company-initiated calls. In addition, the Company is a leader in
developing customer service applications over the Internet. The Company is
currently providing services to over 400 clients, principally in the insurance,
financial services, telecommunications, media and entertainment, technology,
utilities, consumer, automotive, and travel industries. SITEL employs more than
15,000 people.
The Company was founded in 1985 and is a Minnesota corporation. The
Company's executive offices are located at 13215 Birch Street, Omaha, Nebraska
68164, and its telephone number is (402) 963-6810.
THE OFFERING
The Shares offered hereby will be distributed pursuant to Rule 415 of the
Securities Act of 1933, which provides for a continuous offering and sale of the
Shares from time to time by the Selling Stockholders. The Shares which may be
offered by the Selling Stockholders were issued to the Selling Stockholders in
private placements by the Company in connection with the Company's acquisition
of all of the issued and outstanding shares of the capital stock of Telebusiness
New Zealand Limited ("Telebusiness") and Levita Group PTY Limited ("Levita"),
companies which had been privately owned by the Selling Stockholders and others.
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<PAGE>
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION IN THIS PROSPECTUS, THE FOLLOWING
MATTERS SHOULD BE CONSIDERED CAREFULLY IN EVALUATING AN INVESTMENT IN THE SHARES
OF THE COMMON STOCK OFFERED BY THIS PROSPECTUS.
RELIANCE ON MAJOR CLIENTS. A significant portion of SITEL's revenues is
derived from relatively few clients. The Company's 20 and ten largest clients
accounted for 56.8% and 42.1%, respectively, of the Company's revenues during
1996. Most of the company's contracts with its clients are terminable upon short
notice. The Company's four largest clients were GTE Corporation, Microsoft
Corporation, Allstate Insurance Company and J.C. Penney Life Insurance Company,
which accounted for 7.5%, 6.8%, 5.9% and 5.7%, respectively, of the Company's
revenues during 1996. The loss of one or more of its major clients could have a
materially adverse effect on the Company.
RISKS GENERALLY ASSOCIATED WITH ACQUISITIONS. A significant element of the
Company's growth strategy is to pursue strategic acquisitions domestically and
internationally that either expand or complement the Company's business. There
can be no assurance that the Company will be able to identify additional
acceptable acquisition candidates or complete any acquisitions on terms
favorable to the Company or in a timely manner. Acquisitions involve a number of
special risks, including the diversion of management's attention to the
assimilation of the operations and personnel of the acquired companies, adverse
short-term effects on the Company's operating results, integration of financial
reporting and other management systems and the amortization of acquired
intangible assets. The issuance of Common Stock in connection with an
acquisition may result in dilution to existing stockholders. In addition, a
substantial portion of the Company's capital resources may be used for these
acquisitions. The Company may require additional debt or equity financing for
future acquisitions, which may not be available on terms favorable to the
Company, if at all. There is also no assurance that the Company can successfully
integrate an acquired business into the Company's business or that any acquired
business can be operated profitably by the Company. Further expansion in
international markets may involve additional risks relating to the integration
of such international acquisitions, as well as risks relating to currency
exchange rates, different legal and regulatory requirements, difficulties in
staffing and managing foreign operations and other factors.
RISKS ASSOCIATED WITH MANAGING A GROWING BUSINESS. The Company has rapidly
expanded its operations in the past several years through internal growth and
strategic acquisitions, all of which have placed demands on the Company's
administrative, operational and financial resources. The planned continued
growth of the Company's client base and the Company's services can be expected
to continue to place a significant strain on the Company's management and
operations. The Company's future performance and profitability will depend on
its ability to retain management of acquired businesses, attract and retain
additional senior personnel and successfully implement enhancements to its
telecommunications and computer technology and management information systems
and adapt those systems, as necessary, to respond to changes in its worldwide
business.
RELIANCE ON TELECOMMUNICATIONS AND COMPUTER TECHNOLOGY. SITEL's success is
dependent in part on its continued investment in sophisticated
telecommunications and computer technology, including proprietary computer
software, automated call distributors, predictive dialers, computer integrated
telephony and digital switches. The Company has invested significantly in
technology in order to maintain a competitive global advantage and anticipates
that it will be necessary to continue to do so. There can be no assurance that
the Company will be successful in anticipating technological changes or in
selecting and developing new and enhanced technology on a timely basis. In
addition, the Company's business is highly dependent on its computer and
telecommunications equipment and software systems, the temporary or permanent
loss of which, through casualty or operating malfunction, could have a
materially adverse effect on the Company's business.
POSSIBLE DECLINE IN EFFECTIVENESS OF TELESERVICING. The teleservicing
industry has grown significantly in the last ten years. Advances in new forms of
customer service and direct marketing, such as the
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<PAGE>
development of electronic communication via the Internet and other media, could
have an adverse effect on the demand for teleservicing as a form of customer
service or direct sales. As the teleservicing industry continues to grow,
teleservicing's effectiveness as a direct marketing tool also may decrease as a
result of consumer saturation and increased consumer resistance to teleservicing
generally.
DEPENDENCE ON LABOR FORCE. Teleservicing is very labor intensive and
characterized by high personnel turnover. There can be no assurance that the
Company's labor costs will not increase. Some of the Company's teleservicing
activities, particularly insurance product sales and customer service activities
for technology clients, require highly trained employees. The Company's
worldwide presence also necessitates retaining personnel fluent in languages and
dialects spoken and written by customers of the Company's clients. A higher
turnover rate among the Company's employees would increase the Company's
recruiting and training costs, and if the Company were unable to recruit and
retain a sufficient number of employees it would be forced to limit its growth
or possibly curtail its operations. The Company competes for qualified personnel
with other teleservicing firms and periodically is required to pay premium
hourly wages to attract and retain personnel. There can be no assurance that the
Company will be able to continue to hire and retain a sufficient number of
personnel to support its planned growth.
DEPENDENCE ON TELEPHONE SERVICE. The Company's business is materially
dependent upon service provided worldwide by various local and long distance
telephone companies. Rate increases imposed by these companies will increase the
Company's operating expenses and adversely affect its operating margins to the
extent SITEL is unable to pass through the increases to its clients. In
addition, any significant interruption in telephone service would adversely
affect the Company, and the inability of telephone companies to provide SITEL
with greater capacity in any particular country would adversely affect the
Company's growth.
FOREIGN CURRENCY RISKS. A substantial amount of the Company's revenues is
received, and a substantial amount of operating costs is incurred, in foreign
currencies. Because the Company's financial statements are presented in U.S.
dollars, any significant fluctuations in the currency exchange rates between the
U.S. dollar and the currencies of countries in which the Company operates will
affect the Company's results of operations and its financial statements. With
one exception, the Company is not currently engaged in currency-hedging
transactions. The Company has purchased a call option to hedge a foreign
currency commitment related to a future payment to complete an acquisition.
COMPETITIVE INDUSTRY. The worldwide teleservicing industry is extremely
competitive. The Company competes with numerous independent teleservicing firms,
some of which are as large or larger than SITEL, as well as the in-house
teleservicing operations of many of its clients or potential clients. Also, the
Company competes with direct mail, television, radio and other advertising
media. There can be no assurance that additional competitors with greater
resources than the Company will not enter the industry or that the Company's
clients will not choose to conduct internally more of their teleservicing
activities.
FLUCTUATIONS IN QUARTERLY OPERATING RESULTS. The Company has experienced
and expects to continue to experience quarterly variations in its results of
operations principally due to the timing of clients' teleservicing campaigns and
the commencement of new contracts, revenue mix, and the timing of additional
selling, general and administrative expenses to support new business. While the
effects of seasonality on SITEL's business often are offset by the addition of
new clients or new programs for existing clients, the Company's business tends
to be slower in August and December. August is affected by reduced marketing
activities in Europe and December is affected by reduced teleservicing
activities during the holiday season. The Company's planned operating
expenditures are based on revenue forecasts, and if revenues are below
expectations in any given quarter, operating results would likely be materially
adversely affected.
DEPENDENCE ON KEY PERSONNEL. The Company is highly dependent on the efforts
of its executive officers, particularly James F. Lynch, Chairman, Henk P.
Kruithof, Executive Vice Chairman, Michael P.
5
<PAGE>
May, Chief Executive Officer, Phillip A. Clough, President, and Barry S. Major,
Executive Vice President and Chief Financial Officer. The loss of the services
of any of these individuals could have a materially adverse effect on the
Company. Among its executive officers, the Company has employment contracts with
only Messrs. Lynch and May. Mr. Lynch's agreement is subject to a rolling three
year term, and Mr. May's agreement is terminable at will. As the Company
continues to grow, it will need to recruit and retain additional qualified
management personnel.
CONTROL BY MANAGEMENT. Messrs. Lynch and Kruithof beneficially own
(including through a voting agreement granting Mr. Lynch the right to vote
certain shares) approximately 40.4% of the Common Stock. As a result of such
voting concentration, if Messrs. Lynch and Kruithof vote in the same manner,
they likely will be able to exert significant influence over most matters
requiring approval by the Company's stockholders, including the election of
directors. Such voting concentration may have the effect of delaying or
preventing a change in control of the Company.
POTENTIAL VOLATILITY OF STOCK PRICE. The market price of the Common Stock
may be volatile and may be significantly affected by factors such as actual or
anticipated fluctuations in the Company's operating results, announcements of
new services by the Company or its competitors, developments with respect to
conditions and trends in the teleservicing industry or in the industries served
by the Company, governmental regulation, changes in estimates by securities
analysts of the Company's future financial performance, general market
conditions, announcements relating to pending or completed acquisitions and
other factors. In addition, the stock market has from time to time experienced
significant price and volume fluctuations that have adversely affected the
market prices of securities of companies for reasons unrelated to their
operating performance.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS. This Prospectus, including
all documents incorporated herein by reference, contains forward-looking
statements. Additional written or oral forward-looking statements may be made by
the Company from time to time in filings with the Securities and Exchange
Commission or otherwise. The words "believe," "expect," "seek" and "intend" and
similar expressions identify forward-looking statements, which speak only as of
the date the statement is made. Such forward-looking statements are within the
meaning of that term in Section 27A of the Securities Act of 1933, as amended,
and Section 21E of the Securities Exchange Act of 1934, as amended. Such
statements may include, but are not limited to, projections of revenues, income
or loss, capital expenditures, acquisitions, plans for future operations,
financing needs or plans, the impact of inflation and plans relating to services
of the Company, as well as assumptions relating to the foregoing.
Forward-looking statements are inherently subject to risks and uncertainties,
some of which cannot be predicted or quantified. Future events and actual
results could differ materially from those set forth in, contemplated by or
underlying the forward-looking statements. Statements in this Prospectus and in
the Company's periodic reports filed with the Securities and Exchange Commission
and incorporated by reference herein, including those set forth in "Risk
Factors," describe factors, among others, that could contribute to or cause such
differences.
6
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth information regarding the beneficial
ownership of Common Stock as of May 27, 1997 and as adjusted for the sale of
Shares offered hereby by each Selling Stockholder. Unless otherwise noted, each
person or group identified has sole voting and investment power with respect to
the Shares shown.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED PRIOR TO OFFERING OWNED AFTER OFFERING
----------------------- SHARES -----------------------
NAME AND ADDRESS (1) NUMBER PERCENT OFFERED NUMBER PERCENT
- ---------------------------------------- ---------- ----------- --------- ---------- -----------
<S> <C> <C> <C> <C> <C>
Levita Telecorporation Pty Limited...... 623,107 1.0 77,888 545,219 *
Peter Andrew Forward.................... 128,872 * 34,588 94,284 *
Stephen Russell Just.................... 128,872 * 34,588 94,284 *
Simon David Norton...................... 128,872 * 34,588 94,284 *
Michael John Pheasant................... 128,872 * 34,589 94,283 *
</TABLE>
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* less than 1%
(1) The address of Levita Telecorporation PTY Limited is Level 12, 81-83 Mount
Street, North Sydney, New South Wales, Australia. The address of Messrs.
Forward, Just, Norton and Pheasant is c/o SITEL Telebusiness New Zealand,
Level 10, 126 Vincent Street, Auckland, New Zealand. Messrs. Forward, Just,
Norton and Pheasant are employees of Telebusiness.
7
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PLAN OF DISTRIBUTION
The Shares offered pursuant to this Prospectus will generally be sold by the
Selling Stockholders through securities broker-dealers in ordinary broker
transactions. It is expected that the broker-dealers will receive commissions
not in excess of the usual and customary broker's commissions. The Company is
not engaging an underwriter in connection with the shelf registration or
offering of these Shares.
The Selling Stockholders have advised the Company that the sale of the
Shares offered hereby also may be effected directly to purchasers by the Selling
Stockholders acting as principals or through one or more brokers, dealers or
agents from time to time in one or more transactions otherwise than on any stock
exchange or in the over-the-counter market, or through the writing of options
on, or settlement of short sales of, the Shares. Any of such transactions may be
effected at market prices prevailing at the time of sale, at prices relating to
such market prices, at varying prices determined at the time of the sale, or at
negotiated or fixed prices, in each case determined by the Selling Stockholders
or by agreement between the Selling Stockholders and the brokers, dealers,
agents or purchasers. If the Selling Stockholders effect such transactions
through brokers, dealers or agents, such brokers, dealers or agents may receive
compensation in the form of discounts, concessions or commissions from the
Selling Stockholders or commissions from the purchasers of Shares for whom they
act as agent.
DESCRIPTION OF CAPITAL STOCK
GENERAL
The Company is authorized to issue 200,000,000 shares, par value $.001, of
undesignated capital stock. Until otherwise designated by the Board of Directors
of the Company, all authorized shares are deemed to be Common Stock. As of May
27, 1997, there were 321 holders of record of the Company's Common Stock and
2,370 holders of options to purchase Common Stock. As of such date, 61,929,899
shares of Common Stock were outstanding and 15,502,340 shares were subject to
outstanding options granted under the Company's stock option plans.
COMMON STOCK
Subject to the prior rights of any outstanding preferred stock, each
outstanding share of Common Stock is entitled to participate equally in any
distribution of net assets made to the shareholders in liquidation of the
Company and is entitled to participate equally in dividends as and when declared
by the Board of Directors. There are no redemption, sinking fund, conversion, or
preemptive rights with respect to the shares of Common Stock. All outstanding
shares of Common Stock are fully paid and non-assessable.
UNDESIGNATED STOCK
The Board of Directors of the Company generally has the power to issue
shares of capital stock without stockholder approval. The Board of Directors is
authorized to establish the rights, preferences and limitations of this
undesignated stock and to divide such shares into classes, with or without
voting rights. The ability of the Board of Directors to issue additional shares
could impede or deter an unsolicited tender offer or takeover proposal regarding
the Company. Shares of undesignated stock could be issued with terms, provisions
and rights which would make more difficult and, therefore, less likely, a
takeover of the Company not approved by the Board of Directors. The rights of
the holders of the Common Stock could be adversely affected by the future
issuance of undesignated stock.
ANTITAKEOVER EFFECTS OF PROVISIONS OF ARTICLES OF INCORPORATION, BYLAWS AND
MINNESOTA LAW
ARTICLES OF INCORPORATION AND BYLAWS. The Company's Amended and Restated
Articles of Incorporation and Bylaws, as amended, provide for a five member
Board of Directors to be elected to staggered one,
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two and three year terms, and thereafter for successive three year terms, and
that directors may only be removed from office for cause upon a vote of
two-thirds of the Common Stock represented at a stockholders' meeting. The
Articles and Bylaws also provide that they may not be amended in certain
respects except pursuant to the vote of two-thirds of the Common Stock
represented at a stockholders' meeting. These provisions of the Articles of
Incorporation and Bylaws could discourage potential acquisition proposals and
could delay or prevent a change in control of the Company.
SECTIONS 302A.671 AND 302A.673 OF THE MINNESOTA BUSINESS CORPORATION
ACT. The Company is governed by the provisions of Sections 302A.671 and
302A.673 of the Minnesota Business Corporation Act. These anti-takeover
provisions may eventually operate to deny stockholders the receipt of a premium
for their Common Stock. Section 302A.671 basically provides that the shares of a
corporation acquired in a "control share acquisition" have no voting rights
unless voting rights are approved by the stockholders in a prescribed manner. A
"control share acquisition" is generally defined as an acquisition of beneficial
ownership of shares that would, when added to all other shares beneficially
owned by the acquiring person, entitle the acquiring person to have voting power
of 20% or more in the election of directors. Section 302A.673 prohibits a public
corporation from engaging in a "business combination" with an "interested
shareholder" for a period of four years after the date of the transaction in
which the person became an interested shareholder, unless the business
combination is approved in a prescribed manner. A "business combination"
includes mergers, asset sales and other transactions. An "interested
shareholder" is a person who is the beneficial owner of 10% or more of the
corporation's voting stock. Reference is made to the detailed terms of Sections
302A.671 and 302A.673 of the Minnesota Business Corporation Act.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Common Stock is American Stock
Transfer & Trust Company, New York, New York.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for the
Company by Abrahams, Kaslow & Cassman, Omaha, Nebraska. Members of the Abrahams,
Kaslow & Cassman firm directly hold a total of 16,950 shares of Common Stock.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by the Company may be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices at 7 World Trade Center, Suite 1300, New York, New York 10048 and
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such material can be obtained at prescribed rates
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington D.C. 20549. The Commission maintains a World Wide Web site on the
Internet at http://www.sec.gov that contains reports, proxy and information
statements and other information regarding registrants, such as the Company,
that file electronically with the Commission. The Company's Common Stock is
listed on The New York Stock Exchange. Material filed by the Company with the
Exchange can be inspected at the offices of The New York Stock Exchange, Inc.,
20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on Form
S-3 (together with all amendments and exhibits filed or to be filed in
connection therewith, the "Registration Statement") under the Securities Act of
1933 (the "Securities Act") with respect to the Shares offered hereby. This
Prospectus
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does not contain all the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. For further information with respect to the Company and the
Common Stock, reference is made to the Registration Statement and the exhibits
and schedules thereto. The Registration Statement, including exhibits and
schedules thereto, may be inspected and copied at the public reference
facilities maintained by the Commission as described above.
Statements contained or incorporated by reference in this Prospectus as to
the contents of any contract or other document referred to are not necessarily
complete and in each instance reference is made to the copy of such contract or
other documents filed as an exhibit to the Registration Statement, each such
statement being qualified in its entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents of the Company which have been filed with the
Commission are hereby incorporated by reference in this Prospectus:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 (which incorporates by reference portions of the Company's
definitive Proxy Statement for the Company's Annual Meeting of Stockholders
to be held on June 6, 1997).
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
(c) the Company's Current Reports on Form 8-K, and amendments thereto,
filed on January 31, 1997, February 6, 1997, February 12, 1997, April 3,
1997 and April 16, 1997.
(d) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed with the Commission
pursuant to Section 12 of the Exchange Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering shall be deemed to be incorporated by reference
into this Prospectus and to be a part hereof from the respective dates of filing
such documents. Any statement contained herein or in a document all or part of
which is incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein modified or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to any person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the documents incorporated by reference (other than exhibits to
such documents which are not specifically incorporated by reference in such
documents). Requests for such copies should be directed to the Corporate
Secretary, SITEL Corporation, 13215 Birch Street, Suite 100, Omaha, Nebraska
68164, telephone number (402) 963-6810.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER
MADE BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION SHOULD NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN
IMPLICATION THAT INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary........................................................ 3
Risk Factors.............................................................. 4
Selling Stockholders...................................................... 7
Plan of Distribution...................................................... 8
Description of Capital Stock.............................................. 8
Legal Matters............................................................. 9
Available Information..................................................... 9
Incorporation of Certain Information by Reference......................... 10
</TABLE>
216,241 SHARES
COMMON STOCK
---------------------
PROSPECTUS
---------------------
[ ], 1997
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Company in connection
with the sale of Shares being registered hereby. All amounts are estimates
except the SEC registration fee and New York Stock Exchange listing fee. The New
York Stock Exchange listing fees paid in connection with the private placement
of the Shares in the acquisitions are not included in the table.
<TABLE>
<S> <C>
Registration Fee-Securities and Exchange Commission................ $ 4,032
NYSE Listing Fees.................................................. $ 0
Blue Sky Fees and Expenses......................................... $ 1,000
Printing Expenses.................................................. $ 2,500
Legal Fees and Expenses............................................ $ 7,500
Accounting Fees and Expenses....................................... $ 2,500
Transfer Agent Fees and Expenses................................... $ 500
Miscellaneous...................................................... $ 1,000
---------
Total.............................................................. $ 19,032
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Company's Amended and Restated Articles of Incorporation limit the
liability of directors to the maximum extent permitted by the Minnesota Business
Corporation Act. Specifically, directors will not be personally liable for
monetary damages for breach of their fiduciary duties as directors, except for
liability due to (i) any breach of the duty of loyalty to the Company or its
stockholders, (ii) acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) dividends or other
distributions of corporate assets that are in contravention of certain statutory
or contractual restrictions; (iv) violations of certain Minnesota securities
laws, or (v) any transaction from which the director derives an improper
personal benefit. Liability under the federal securities laws is not limited by
the Amended and Restated Articles of Incorporation.
The Minnesota Business Corporation Act requires that the Company indemnify
any director or officer made or threatened to be made a party to a legal
proceeding, by reason of the former or present official capacity of the person,
against judgments, penalties, fines, settlements and reasonable expenses
incurred in connection with the proceeding if certain statutory standards are
met. A "proceeding" means a threatened, pending or completed civil, criminal,
administrative, arbitration or investigative proceeding, including a derivative
action in the name of the Company. Reference is made to the detailed terms of
the Minnesota indemnification statute (Minn. Stat. Section 302A.521) for a
complete statement of such indemnification rights. The Company's Amended and
Restated Articles of Incorporation also require the Company to provide
indemnification of these persons to the fullest extent of the Minnesota
indemnification statute.
The Company has entered into an indemnification agreement with each of its
directors and executive officers to provide him or her with specific contractual
assurances that the indemnification protection provided by the Minnesota
Business Corporation Act and the Company's Amended and Restated Articles of
Incorporation will be available to such director or officer and to provide for
the indemnification of and the advancing of expenses to such director or officer
to the fullest extent permitted by law. The Company also presently maintains
insurance to protect itself and its directors and officers against certain
liabilities, costs, and expenses arising out of claims or suits against such
directors and officers resulting from their service in such capacity.
II-1
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<C> <C> <S> <C>
(1) 4.1 Amended and Restated Articles of Incorporation of Registrant
(2) 4.1 (a) Articles of Amendment filed September 10, 1996 to the Amended and
Restated Articles of Incorporation
4.2 Amended and Restated Bylaws of Registrant (conformed copy including
all amendments through June 6, 1997)
* 5.1 Opinion of Abrahams, Kaslow & Cassman
* 23.1 Consent of KPMG Peat Marwick LLP
* 23.2 Consent of Abrahams, Kaslow & Cassman (included in Exhibit 5.1)
* 24.1 Power of Attorney (included in signature page)
</TABLE>
- ------------------------
* previously filed
(1) Exhibit 4.1 hereto was previously filed as Exhibit 3.1 to the Registration
Statement of SITEL Corporation on Form S-1 (Registration No. 33-91092) and
is incorporated herein by this reference.
(2) Exhibit 4.1(a) hereto was previously filed as Exhibit 3.1(a) to the
registrant's Form 10-Q for the quarter ended August 31, 1996 and is
incorporated herein by this reference.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any such action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually, or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
II-2
<PAGE>
Provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused Amendment No. 1
to this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Omaha, State of Nebraska, on June 17,
1997.
SITEL CORPORATION
By: /s/ MICHAEL P. MAY
-----------------------------------------
Michael P. May
CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, as amended,
Amendment No. 1 to this Registration Statement has been signed by the following
persons, in the capacities and on the dates stated.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
/s/ JAMES F. LYNCH*
- ------------------------------ Chairman of the Board and June 17, 1997
James F. Lynch Director
/s/ HENK P. KRUITHOF*
- ------------------------------ Executive Vice Chairman June 17, 1997
Henk P. Kruithof and Director
/s/ MICHAEL P. MAY Chief Executive Officer
- ------------------------------ and Director (Principal June 17, 1997
Michael P. May Executive Officer)
Executive Vice President-
/s/ BARRY S. MAJOR* Finance and Chief
- ------------------------------ Financial Officer June 17, 1997
Barry S. Major (Principal Financial
Officer)
/s/ ALAN G. SIEMEK*
- ------------------------------ Controller (Principal June 17, 1997
Alan G. Siemek Accounting Officer)
/s/ KELVIN C. BERENS*
- ------------------------------ Director June 17, 1997
Kelvin C. Berens
/s/ BILL L. FAIRFIELD*
- ------------------------------ Director June 17, 1997
Bill L. Fairfield
/s/ GEORGE J. KUBAT*
- ------------------------------ Director June 17, 1997
George J. Kubat
*By: /s/ MICHAEL P. MAY
-------------------------
Michael P. May
ATTORNEY-IN-FACT
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
PAGE NO.
---------
<C> <C> <S> <C> <C>
(1) 4.1 Amended and Restated Articles of Incorporation of SITEL
Corporation............................................. N/A
(2) 4.1 (a) Articles of Amendment filed September 10, 1996 to the
Amended and Restated Articles of Incorporation.......... N/A
4.2 Amended and Restated Bylaws of SITEL Corporation
(conformed copy including all amendments through June 6,
1997)...................................................
* 5.1 Opinion of Abrahams, Kaslow & Cassman.....................
* 23.1 Consent of KPMG Peat Marwick LLP..........................
* 23.2 Consent of Abrahams, Kaslow & Cassman (included in Exhibit
5.1)
* 24.1 Power of Attorney (included in signature page)
</TABLE>
- ------------------------
* previously filed
(1) Exhibit 4.1 hereto was previously filed as Exhibit 3.1 to the Registration
Statement of SITEL Corporation on Form S-1 (Registration No. 33-91092) and
is incorporated herein by this reference.
(2) Exhibit 4.1(a) hereto was previously filed as Exhibit 3.1(a) to the
registrant's Form 10-Q for the quarter ended August 31, 1996 and is
incorporated herein by this reference.
<PAGE>
Exhibit 4.2
CONFORMED COPY INCLUDING
ALL AMENDMENTS THROUGH
06/06/97
AMENDED AND RESTATED
BYLAWS
OF
SITEL CORPORATION
ARTICLE I. OFFICES
Section 1. BUSINESS OFFICES. The corporation may have such offices, both
within and without the State of Minnesota, as the board of directors may
designate or as from time to time may be necessary or convenient for the
conduct of its business.
Section 2. REGISTERED OFFICE. The registered office of the corporation
in the State of Minnesota shall be at such location as the board of
directors, by resolution, may determine from time to time in accordance with
the Minnesota Business Corporation Act.
ARTICLE II. MEETINGS OF SHAREHOLDERS
Section 1. TIME AND PLACE OF MEETINGS; CALLING OF MEETINGS. An annual
meeting of shareholders shall be held each year for the purpose of electing
directors and for the transaction of such other business as properly may come
before the meeting. The date, time and place of the annual meeting shall be
determined by the chairman of the board; if the chairman of the board does
not so act, then the president shall determine the date, time, and place of
the annual meeting; and if the president does not so act, then the board of
directors shall determine the date, time and place of the annual meeting.
Special meetings of shareholders for any other purpose may be held at such
time and place, within or without the State of Minnesota, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Special meetings of shareholders may be called by the chief executive
officer, the chief financial officer, two (2) or more directors, the chairman
of the board, the president, or the holders of not less than ten percent
(10%) of the outstanding shares of the corporation entitled to vote at the
meeting.
Section 2. NOTICE. Written or printed notice stating the place, day, and
hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than
ten (10) nor more than sixty (60) days before the date of the meeting. All
such notices shall be delivered, either personally or by mail, by or at the
<PAGE>
direction of the board of directors, the chairman of the board, the president
or the secretary, to each shareholder of record entitled to vote at such
meeting; and if mailed, such notice shall be deemed to be delivered when
deposited in the United States mail, postage prepaid, addressed to the
shareholder at such shareholder's address as it appears on the records of the
corporation. When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than one
hundred twenty (120) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, then a notice of the adjourned meeting,
shall be given to each shareholder of record entitled to vote at the meeting.
Section 3. SHAREHOLDERS LIST; STOCK LEDGER. The officer having charge of
the stock ledger of the corporation shall make, at least ten (10) days before
every meeting of shareholders, a complete list of the shareholders entitled
to vote at such meeting arranged in alphabetical order, showing the address
of and the number of shares registered in the name of each shareholder. Such
list shall be open to the examination of any shareholder, for any purpose
germane to the meeting, during usual business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list, or a duplicate thereof, also shall be produced and kept open
at the time and place of the meeting and shall be subject to the inspection
of any shareholder during the whole time of the meeting. The stock ledger
shall be the only evidence as to who are the shareholders entitled to examine
the stock ledger, the list required by this section, or the books of the
corporation or to vote in person or by proxy at any meeting of shareholders.
Section 4. QUORUM. A majority of the voting power of the shares entitled
to vote at a meeting of shareholders, present in person or by proxy, shall
constitute a quorum at such meeting, except as otherwise provided by
applicable law or by the Articles of Incorporation. If a quorum is not
present at any meeting of shareholders, then the holders of the shares
present (in person or by proxy) and entitled to vote at the meeting, shall
have the power, by the affirmative vote of the holders of a majority of such
shares, to adjourn the meeting to another time and place.
Section 5. VOTE REQUIRED. Except as otherwise provided by applicable
law, the Articles of Incorporation, or these Bylaws, and except with respect
to the election of directors, if a quorum is present (in person or by proxy)
at any meeting of shareholders, the affirmative vote of the holders of a
majority of the voting power of the shares present (in person or by proxy) at
the meeting and entitled to vote on the subject matter shall be the act of
the shareholders. If a quorum is present (in person or by proxy), directors
shall be elected by a plurality of the votes cast.
Section 6. PROXIES. At all meetings of shareholders, a shareholder may
vote either in person or by proxy executed in writing by the shareholder or
by his duly authorized attorney-in-fact. Such proxy shall be filed with the
<PAGE>
Secretary of the corporation before or at the time of the meeting. Except as
otherwise required by applicable law, or as otherwise stated in the proxy, a
proxy shall be valid only for the meeting or meetings for which it is given
or solicited and any adjournment or adjournments thereof.
Section 7. VOTING RIGHTS. Except as otherwise provided by applicable
law, by any lawful agreements by or among shareholders, or by the Articles of
Incorporation, and subject to Section 3 of Article VI of these Bylaws, the
holder of each share entitled to vote on any matter submitted to a vote of
shareholders shall be entitled to one vote per share on such matter.
Section 8. VOTING OF SHARES BY CERTAIN HOLDERS. Shares of the
corporation standing in the name of another corporation may be voted by such
officer, agent, or proxy as the by-laws of such corporation may prescribe or,
in the absence of such provision, as the board of directors of such
corporation may determine.
Shares of the corporation held by a personal representative, guardian, or
conservator may be voted by him, either in person or by proxy, without a
transfer of such shares into his name. Shares of the corporation standing in
the name of a trustee may be voted by him, either in person or by proxy, but
no trustee shall be entitled to vote shares held by him without transfer of
such shares into his name.
Shares of the corporation standing in the name of a receiver may be voted
by such receiver, and shares of the corporation held by or under the control
of a receiver may be voted by him without the transfer thereof into his name
if authority so to do be contained in an appropriate order of the court by
which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until his shares have been transferred into the name of the pledgee,
and thereafter the pledgee shall be entitled to vote the shares so
transferred.
Shares of its own stock, owned by the corporation or held by it in a
fiduciary capacity, shall not be voted, directly or indirectly, at any
meeting and shall not be counted in determining the total number of
outstanding shares at any given time.
Section 9. INFORMAL ACTION. Any action required to be taken or which
may be taken at a meeting of shareholders may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all
of the shareholders entitled to vote with respect to the subject matter
thereof.
ARTICLE III. BOARD OF DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by its board of directors. In furtherance, and not in
limitation, of the powers conferred by the Minnesota Business Corporation
Act, the board of directors is expressly authorized to:
<PAGE>
(a) subject to the provisions of Article VII of these Bylaws, adopt,
amend, alter, change or repeal the Bylaws of the Corporation; provided,
however, that no Bylaws hereafter adopted shall invalidate any prior act of
the directors that would have been valid if such new Bylaws had not been
adopted;
(b) determine the rights, powers, duties, rules and procedures that
affect the power of the board of directors to manage and direct the business
and affairs of the corporation, including the power to designate and empower
committees of the board of directors, to elect, appoint and empower the
officers and other agents of the corporation, and to determine the time and
place of, and the notice requirements for, board meetings, as well as quorum
and voting requirements for, and the manner of taking, board action; and
(c) exercise all such powers and do all such acts as may be exercised or
done by the corporation, subject to the provisions of the Minnesota Business
Corporation Act, the Articles of Incorporation, and the Bylaws of the
corporation.
Section 2. NUMBER, ELECTION, AND TERM OF OFFICE. The number of directors
which shall constitute the Board of Directors shall be seven (7). The
directors shall be divided into three classes, with the first class ("Class
I") having two (2) directors, the second class ("Class II") having three (3)
directors and the third class ("Class III") having two (2) directors. The
initial term of office of the original Class I directors shall expire at the
1996 annual meeting of shareholders, the initial term of office of the
original Class II directors shall expire at the 1997 annual meeting of
shareholders, and the initial term of office of the original Class III
director shall expire at the 1998 annual meeting of shareholders. Directors
elected to succeed those directors whose terms have thereupon expired shall
be elected to a term to expire at the third (3rd) succeeding annual meeting
of shareholders after their election, and upon the election and qualification
of their successors. At the 1997 annual meeting of shareholders,
notwithstanding the provisions of Article III, Section 4 of these Bylaws, the
director elected by the shareholders to fill the vacancy created by the
increase in the number of Class III directors shall be elected to a term to
expire at the 1998 annual meeting of shareholders, and upon the election and
qualification of his or her successor. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes so
as to maintain or attain, if possible, the number of directors in each class
as nearly equal as possible, but in no case will a decrease in the number of
directors shorten the term of any incumbent director.
Section 3. RESIGNATION OR REMOVAL. Any director may resign at any time
upon written notice to the corporation. Any director, or the entire board of
directors, may be removed from office at any time, but only for cause, and
only at a regular meeting of the shareholders or at any special meeting of
the shareholders called for such purpose, if a quorum is present (in person
or by proxy), upon the affirmative vote of the holders of at least two-thirds
(2/3) of the voting power of the shares present (in person or by proxy) at
the meeting and entitled to vote generally in the election of directors,
voting together as a single class. Notwithstanding the foregoing, any
director, other than James F. Lynch, who was an employee of the corporation
<PAGE>
at the time such director was elected may be removed from office at the
election of a majority of the remaining directors if such director ceases,
for any reason, to be an employee of the corporation.
Section 4. VACANCIES. Any vacancies in the board of directors for any
reason and any newly created directorships resulting by reason of any
increase in the number of directors may be filled only by the board of
directors, acting by a majority of the remaining directors then in office,
although less than a quorum, or by a sole remaining director, and any
directors so appointed shall hold office until the next election of directors
or, after subparagraph (b) of Section 2 is effective, until the next election
of the class for which such directors have been chosen and, in either
instance, until their successors are elected and qualified or their earlier
resignation or removal.
Section 5. ANNUAL MEETING. An annual meeting of each newly elected board
of directors shall be held without notice other than this bylaw immediately
after, and at the same place as, the annual meeting of shareholders.
Section 6. OTHER MEETINGS AND NOTICE. Regular meetings, other than the
annual meeting, of the board of directors may be held at such time and at
such place as from time to time shall be determined by resolution of the
board; at least three (3) days' notice of such regular meetings shall be
given to each director either personally, by telephone, by mail, by
facsimile, by telegraph, or in any other manner reasonably designed to
provide such notice on a timely basis. Special meetings of the board of
directors may be called by or at the request of the chairman of the board or
the president on at least three (3) days' notice, or such shorter time as may
be practical under the circumstances, to each director, given either
personally, by telephone, by mail, by facsimile, by telegraph, or in any
other manner reasonably designed to provide such notice on a timely basis; in
like manner and on like notice, the chairman of the board or the president
must call a special meeting of the board of directors upon the written
request of a majority of the directors.
Section 7. QUORUM. A majority of the total number of directors shall
constitute a quorum for the transaction of business. The vote of a majority
of directors present at a meeting at which a quorum is present shall be the
act of the board of directors. If a quorum is not present at any meeting of
the board of directors, then the directors present at such meeting may
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
Section 8. COMPENSATION. By resolution of the board of directors, the
directors may be paid their expenses, if any, of attendance at each meeting
of the board of directors and may be paid any combination of a fixed sum for
attendance at each meeting of the board of directors, a stated salary as
director and other benefits, including stock options. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor.
Section 9. PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the board of directors at which action on any
corporate matter is taken shall be conclusively presumed to have assented to
<PAGE>
the action taken unless his or her dissent shall be entered in the minutes of
the meeting or unless he or she shall file his or her written dissent to such
action with the person acting as the secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
secretary of the corporation immediately after adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in favor of
such action.
Section 10. COMMITTEES. The board of directors, by resolution adopted by
a majority of the full board of directors, may designate from its members an
executive committee, an audit committee, and a compensation committee and may
designate one or more other committees which shall consist of one or more
persons who need not be directors. Any such committee, to the extent
provided in such resolution, shall have and may exercise the powers and
authority of the board of directors in the management of the business and
affairs of the corporation, except as otherwise limited by statute, and may
authorize the seal of the corporation to be affixed to all papers which may
require it. The board of directors may designate one or more directors as
alternate members of an executive committee, an audit committee and a
compensation committee, and may designate one or more persons who need not be
directors as alternate members of any other committee, who may replace any
absent or disqualified member at any meeting of the committee. Such
committee or committees shall have such name or names as may be determined
from time to time by resolution adopted by the board of directors. Each
committee shall keep regular minutes of its meetings and report to the board
of directors when required.
Section 11. COMMITTEE RULES. Each committee of the board of directors
may fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as otherwise may be provided by the resolution of the
board of directors designating such committee, but in all cases the presence
of at least a majority of the members of such committee shall be necessary to
constitute a quorum. In the event that a member of a committee and that
member's alternate, if alternates are designated by the board of directors as
provided in Section 10 of this Article III, are absent or disqualified, the
member or members of such committee present at a meeting of such committee
and not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the board of
directors to act at the meeting in place of any such absent or disqualified
member.
Section 12. COMMUNICATIONS EQUIPMENT. Members of the board of directors
or any committee of the board of directors may participate in and act at any
meeting of such board or committee by means of conference telephone or other
similar communications equipment by means of which all persons participating
in the meeting can simultaneously hear each other. Participation in such a
meeting shall constitute attendance and presence in person at the meeting of
the person or persons so participating.
Section 13. INFORMAL ACTION. Except as may be otherwise required by
statute or the Articles of Incorporation, any action required or permitted to
be taken at any meeting of the board of directors, or of any committee
<PAGE>
thereof, may be taken without a meeting if a majority of the members of the
board or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the board or
committee.
ARTICLE IV. OFFICERS
Section 1. NUMBER. The general officers of the corporation shall
consist of a chairman of the board, a chief executive officer, a chief
financial officer, a president, one or more executive vice presidents (the
number thereof to be determined by the board of directors), a secretary and a
treasurer, each of whom shall be elected by the board of directors. Such
other officers and assistant officers as the board of directors may deem
necessary may be elected or appointed by the board of directors. Unless
prohibited by applicable law, any two or more offices may be held by the same
person.
Section 2. ELECTION AND TERM OF OFFICE. The officers of the corporation
to be elected by the board of directors shall be elected annually by the
board of directors at its first meeting held after each annual meeting of
shareholders of the corporation. If the election of officers is not held at
such meeting, then such election shall be held as soon thereafter as may be
convenient. Each officer shall hold office until such officer's successor
shall have been duly elected and qualified or until such officer's earlier
resignation or removal in the manner provided in these Bylaws.
Section 3. REMOVAL. Any officer elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment
the best interests of the corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the
person so removed.
Section 4. VACANCIES. A vacancy in an office may be filled by the board
of directors for the unexpired portion of the term of such office.
Section 5. CHIEF EXECUTIVE OFFICER. The chief executive officer of the
corporation shall have the powers and perform the duties incident to that
position. Subject to directions given by the board of directors, the chief
executive officer shall be in general and active charge of the business and
affairs of the corporation and shall be the chief policy-making officer of
the corporation. The chief executive officer shall see that all directions,
orders, and resolutions of the board of directors are carried out. Whenever
the Chairman of the Board is unable to preside at a meeting of the Board of
Directors, the chief executive officer shall preside at all meetings of the
board of directors and stockholders and shall have such other powers and
perform such other duties as may be prescribed by the board of directors or
as may be provided in these Bylaws. The chief executive officer may sign any
deeds, mortgages, bonds, contracts, or other instruments which the board of
directors has authorized to be executed, except in cases where the signing
and execution thereof shall be expressly delegated by the board of directors
or by these Bylaws to some other officer or agent of the corporation or shall
be required by law to be done otherwise. Whenever the president is unable to
serve, by reason of sickness, absence, or otherwise, the chief executive
officer also shall perform all duties and exercise all powers of the
president.
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Section 6. CHAIRMAN OF THE BOARD. The chairman of the board shall
preside at meetings of the board of directors and meetings of shareholders of
the corporation. If the chairman of the board is the chief executive
officer, then he or she also shall perform the duties assigned in these
Bylaws or by the board of directors to the chief executive officer. If the
chairman of the board is not the chief executive officer, then he or she
shall perform such other duties as from time to time shall be specified by
the board of directors or assigned to him or her by the chief executive
officer.
Section 7. PRESIDENT. If the president is the chief executive officer,
then he or she shall perform the duties assigned in these Bylaws or by the
board of directors to the chief executive officer. If the president is not
the chief executive officer, then he or she shall perform such duties as from
time to time shall be assigned to him or her by the board of directors or the
chief executive officer and, unless otherwise specified by the board of
directors, shall have the powers and perform the duties of the chief
executive officer whenever the chief executive officer is unable to act by
reason of sickness, absence, or other cause. If the corporation does not
have a chairman of the board or chief executive officer, then the president
shall preside at meetings of the board of directors and meetings of
shareholders of the corporation.
Section 8. CHIEF FINANCIAL OFFICER. The chief financial officer shall,
subject to directions given by the board of directors or the chief executive
officer, oversee the financial affairs of the corporation. The chief
financial officer shall perform such duties as from time to time shall be
assigned to him or her by the board of directors or the chief executive
officer.
Section 9. EXECUTIVE VICE PRESIDENTS. The executive vice presidents
shall assist the chief executive officer in the administration, general
management, and direction of the corporation's business and affairs with
respect to such matters as may be assigned to them by the board of directors,
the chief executive officer or the president. Whenever the chief executive
officer and the president (if the president is not the chief executive
officer) both are unable to serve by reason of sickness, absence, or other
cause, the regular powers and duties of their offices shall be exercised and
performed by the executive vice presidents, in the order of their seniority
in such office, except as otherwise specified by the board of directors.
Section 10. DIVISIONAL PRESIDENTS. The Chief Executive Officer may
appoint a manager of each separate division of the corporation who shall be
given the title of "president" followed by the designation of such separate
division, but who shall not be a general officer of the corporation. Such
divisional "president" shall exercise only such powers and perform only such
duties with respect to each such separate division as shall be assigned to
him or her by the Chief Executive Officer from time to time, and shall have
no authority or power to bind or obligate the corporation, nor to sign any
documents on behalf of the corporation except as has been expressly assigned
to him or her by the Chief Executive Officer from time to time.
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Section 11. SENIOR VICE PRESIDENTS. The senior vice presidents shall
perform such duties and have such powers as may be assigned to them from time
to time by the board of directors, the chief executive officer, the
president, or the chief financial officer. Whenever the chief executive
officer, the president (if the president is not the chief executive officer),
the chief financial officer, and any executive vice presidents who have been
elected all are unable to serve by reason of sickness, absence, or other
cause, the regular powers and duties of their offices shall be exercised and
performed by the senior vice presidents, in the order of their seniority in
such office, except as otherwise specified by the board of directors.
Section 12. VICE PRESIDENTS. The vice presidents (if any) shall perform
such duties and have such powers as may be assigned to them from time to time
by the board of directors, the chief executive officer, or the president (if
the president is not the chief executive officer).
Section 13. THE SECRETARY AND ASSISTANT SECRETARIES. Unless otherwise
provided by the board of directors, the secretary shall attend all meetings
of the board of directors and all meetings of shareholders of the corporation
and record all the proceedings of such meetings in a book to be kept for that
purpose and shall perform similar duties for the standing committees of the
board of directors when required. The secretary shall give, or cause to be
given, notice of all meetings of shareholders and special meetings of the
board of directors; shall perform such other duties as may be prescribed by
the board of directors, the chief executive officer, or the president (if the
president is not the chief executive officer); and shall have custody of the
corporate seal of the corporation. The secretary, or an assistant secretary,
shall have authority to affix the corporate seal of the corporation to any
instrument requiring it; and when so affixed, the corporate seal of the
corporation may be attested by the signature of the secretary or by the
signature of such assistant secretary. The board of directors may give
general authority to any other officer to affix the seal of the corporation
and to attest the affixing thereof by his or her signature. The assistant
secretary, or if there be more than one, the assistant secretaries in the
order determined by the board of directors, the chief executive officer, or
the secretary, shall, in the absence or disability of the secretary, perform
the duties and exercise the powers of the secretary and shall perform such
other duties and have such other powers as the board of directors, the chief
executive officer, or the secretary from time to time may prescribe.
Section 14. THE TREASURER AND ASSISTANT TREASURER. The treasurer shall
have or supervise the custody of the corporation's funds and securities;
shall keep, or cause to be kept, full and accurate accounts of receipts and
disbursements in books belonging to the corporation; shall deposit, or cause
to be deposited, all monies and other valuable effects of the corporation in
the name and to the credit of the corporation; and shall render an accounting
to the board of directors, the chief executive officer, and the president (if
the president is not the chief executive officer) whenever requested or
required. If required by the board of directors, the treasurer shall give
the corporation a bond in such sum and with such surety or sureties as shall
be satisfactory to the board of directors for the faithful performance of the
duties of the office of treasurer and for the restoration to the corporation,
in case of his or her death, resignation, retirement, or removal from office,
of all books, papers, vouchers, money, and other property of whatever kind in
the possession or under the control of the treasurer belonging to the
corporation. The assistant treasurer, or if there be more than one, the
<PAGE>
assistant treasurers in the order determined by the board of directors, the
chief executive officer, or the treasurer, shall, in the absence or
disability of the treasurer, perform the duties and exercise the powers of
the treasurer and shall perform such other duties and have such other powers
as the board of directors, the chief executive officer, or the treasurer from
time to time may prescribe.
Section 15. OTHER OFFICERS AND ASSISTANT OFFICERS. Officers and
assistant officers, if any, other than those whose positions and duties are
provided for in these Bylaws, shall have such authorities and perform such
duties as from time to time may be prescribed by resolution of the board of
directors.
Section 16. SALARIES. The salaries of the officers of the corporation
shall be fixed from time to time by or at the direction of the board of
directors, and no officer shall be prevented from receiving such salary by
reason of the fact that such officer also is a Director of the corporation.
ARTICLE V. STOCK CERTIFICATES
Section 1. FORM. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by or in the name of the corporation
by the chairman of the board, the president, or a vice president and by the
secretary or an assistant secretary of the corporation, certifying the number
of shares owned by such holder in the corporation. Where a certificate is
signed (a) by a transfer agent other than the corporation or its employee or
(b) by a registrar other than the corporation or its employee, the signature
of any such chairman of the board, president, vice president, secretary, or
assistant secretary may be a facsimile. In case any officer or officers who
have signed, or whose facsimile signature or signatures have been used on,
any such certificate or certificates shall cease to be such officer or
officers of the corporation, whether because of death, resignation, or
otherwise, before such certificate or certificates have been delivered by the
corporation, such certificate or certificates nevertheless may be issued and
delivered as though the person or persons who sign such certificate or
certificates or whose facsimile signature or signatures have been used
thereon had not ceased to be such officer of officers of the corporation.
All certificates for shares shall be consecutively numbered or otherwise
identified. The name of the person to whom the shares represented thereby
are issued, with the number of shares and date of issue, shall be entered on
the books of the corporation. All certificates surrendered to the
corporation for transfer shall be cancelled; and no new certificate shall be
issued in replacement of an outstanding certificate until the former
certificate for a like number of shares shall have been surrendered and
cancelled, except as otherwise provided in Section 2 of this Article V with
respect to lost, stolen, or destroyed certificates. If the corporation shall
be authorized to issue more than one class of stock or more than one series
of any class, the designations, preferences, and relative, participating,
optional, or other special rights of the various classes of stock or series
thereof and the qualifications, limitations, or restrictions of such rights,
together with a statement of the authority of the board of directors to
determine the relative rights and preferences of subsequent classes or
series, shall be set forth in full on the face or back of the certificate
which the corporation shall issue to represent such stock, or, in lieu
<PAGE>
thereof, such certificate shall contain a statement that the stock is, or may
be, subject to certain rights, preferences, or restrictions and that a
statement of the same will be furnished without charge by the corporation
upon request by any shareholder. Except as otherwise required by this bylaw
or applicable law, certificates for shares of the corporation shall be in
such form as the board of directors may approve from time to time.
Section 2. LOST CERTIFICATES. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen, or destroyed.
When authorizing such issuance of a new certificate or certificates, the
board of directors may, in its discretion and as the condition precedent to
the issuance thereof, require the owner of such lost, stolen, or destroyed
certificate or certificates, or his or her legal representative, to give the
corporation a bond in such sum as the board of directors may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen, or destroyed.
Section 3. TRANSFER OF SHARES. Transfer of shares of the corporation
shall be made only on the stock transfer books of the corporation by the
holder of record thereof or by his legal representative, who shall furnish
proper evidence of authority to transfer, or by his attorney thereunto duly
authorized by power-of-attorney duly executed and filed with the Secretary of
the corporation or with a transfer agent appointed pursuant to these Bylaws,
and only upon the surrender for cancellation of the certificate or
certificates for such shares properly endorsed and the payment of all
transfer taxes. Except as otherwise provided in these Bylaws or by
applicable law, the person in whose name shares stand on the books of the
corporation shall be deemed by the corporation to be the owner thereof for
all purposes. The Board of Directors from time to time may make such
additional rules and regulations, consistent with these Bylaws and applicable
law, as it may deem expedient concerning the issue, transfer, and
registration of the shares of the corporation.
Section 4. TRANSFER AGENTS AND REGISTRARS. The Board of Directors from
time to time may appoint one or more transfer agents and one or more
registrars and may require all certificates for shares of the corporation to
bear the signature or signatures of any of them.
ARTICLE VI. GENERAL PROVISIONS
Section 1. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
Section 2. SEAL. The corporation shall have a corporate seal. The
corporate seal shall have inscribed thereon the name of the corporation and
the words "Corporate Seal" and "Minnesota." The corporate seal may be used
by causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise. Except as otherwise required by this bylaw or applicable law,
the corporate seal shall be in such form as a board of directors may approve
from time to time.
<PAGE>
Section 3. FIXING A RECORD DATE. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders
or any adjournment thereof, or entitled to receive payment of any dividend,
or in order to make a determination of shareholders for any other proper
purpose, the board of directors of the corporation may fix a record date not
more than sixty (60) days before the date of any such action specified above.
If no record date is fixed for the determination of shareholders entitled to
notice of or to vote at a meeting of shareholders or shareholders entitled to
receive payment of a dividend, then the date on which notice of the meeting
is mailed or the date on which the resolution of the board of directors
declaring such dividend is adopted, as the case may be, shall be the record
date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
Section 4. SECURITIES OR OTHER INTERESTS OWNED BY CORPORATION. Voting
securities or other interests in any other corporation, partnership, or
association held by the corporation may be voted by the chairman of the
board, the chief executive officer, the president, or any executive vice
president, unless the board of directors specifically confers authority to
vote with respect thereto, which authority may be general or confined to
specific instances, upon some other person or officer. Any person authorized
to vote securities or other interests shall have the power to appoint
proxies, with general power of substitution.
Section 5. WAIVER OF NOTICE. Whenever notice is required to be given
under any provision of the Minnesota Business Corporation Act or the Articles
of Incorporation or Bylaws, a written waiver, signed by the person entitled
to notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of shareholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
ARTICLE VII. AMENDMENTS
Except as otherwise required by law, these Bylaws may be amended or
repealed, if a quorum is present (in person or by proxy), at any regular
meeting of the shareholders or at any special meeting of the shareholders if
notice of such amendment or repeal is contained in the notice of such special
meeting and, subject to the power of the shareholders to amend or repeal,
these Bylaws may be amended or repealed by action of the board of directors
at any regular or special meeting; provided, however, that the board of
directors shall not amend or repeal any of the provisions of Article III
(Board of Directors) or this Article VII, which provisions shall be amended
or repealed only upon the affirmative vote of at least two-thirds (2/3) of
the voting power of the shares present (in person or by proxy) at the meeting
and entitled to vote on the subject matter.
