EXHIBIT 10.1
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT, dated the 19th day of April, 2007 (this
"Agreement"), by and among Premiere Global Services, Inc., a Georgia corporation
(the "Company"), and Crescendo Partners II, L.P., Series E, Crescendo
Investments II, LLC, Crescendo Advisors II, LLC, Eric S. Rosenfeld, Delacourt
Holdings Ltd., Colin D. Watson and the Premiere Full Value Committee (each a
"Crescendo Party" and collectively, "Crescendo").
WHEREAS, Crescendo (i) has publicly stated that it intends to solicit
proxies for the election of its own opposition slate of nominees to the
Company's Board of Directors (the "Board") and to approve an amendment to the
Company's Second Amended and Restated Bylaws (the "Bylaws") to declassify the
Board (the "Proxy Solicitation"), and (ii) has taken certain actions in
furtherance thereof, including filing preliminary proxy soliciting materials
with the Securities and Exchange Commission (the "SEC") and, in letters dated
November 30, 2006 and January 11, 2007, requesting to inspect certain of the
Company's books, records and documents pursuant to Section 14-2-1602 of the
Georgia Business Corporation Code (the "Demand Letters");
WHEREAS, the Company has informed Crescendo that the Company intends to
commence a $150,000,000 self tender offer for up to 11,857,707 shares of Company
common stock par value $0.01 per share (the "Common Stock"), at a price of
$12.65 per share and to propose an amendment to its Bylaws to declassify its
Board; and
WHEREAS, the Company and Crescendo have determined that it is in the
best interests of the Company and its shareholders to avoid the substantial
expense, disruption and adverse publicity that would result from the Proxy
Solicitation.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, covenants, agreements and conditions
hereinafter set forth, and, intending to be legally bound hereby, the parties
hereby agree as follows:
1. Matters Related to the 2007 Annual Meeting of Shareholders.
(a) Board Declassification. In accordance with the Bylaws, in
connection with its 2007 Annual Meeting of Shareholders (the "2007 Annual
Meeting"), the Company shall submit a resolution to its shareholders at the 2007
Annual Meeting to declassify the Company's Board and provide for the annual
election of all directors (the "Declassification Proposal"), the first of such
annual elections to take place at the Company's 2008 Annual Meeting of
Shareholders (the "2008 Annual Meeting"). The Company shall include the
Declassification Proposal in its notice of meeting and its proxy statement for
the 2007 Annual Meeting, shall recommend to shareholders their approval and
adoption of the Declassification Proposal, and shall solicit proxies for the
Declassification Proposal in the same manner as other proposals to shareholders
in the Company's proxy statement for the 2007 Annual Meeting. All members of the
Company's Board have agreed to support and vote for the Declassification
Proposal and to solicit and actively seek the approval of the Declassification
Proposal.
(b) Company Nomination. The Company shall nominate Mr. W.
Steven Jones and Mr. J. Walker Smith, Jr. (the "2007 Nominees") for re-election
to the Board at the 2007 Annual Meeting.
(c) Crescendo Vote. Each Crescendo Party shall vote, and shall
cause their respective Affiliates and Associates (as such terms are defined in
Section 11) to vote, all Voting Securities (as such term is defined in Section
11) which they are entitled to vote at the 2007 Annual Meeting (i) in favor of
the election of each of the 2007 Nominees, (ii) in favor of the Declassification
Proposal, and (iii) in accordance with the recommendation of the Board on any
other items of business to come before such meeting as specifically described in
Section 1(f) below.
(d) Crescendo Nominees Withdrawn. Crescendo hereby withdraws
its nominations of Mr. Eric S. Rosenfeld and Mr. Colin D. Watson for election to
the Board at the 2007 Annual Meeting and its proposal to amend the Bylaws to
declassify the Board. Crescendo will promptly notify the SEC that it is
withdrawing its preliminary proxy statement filed with the SEC on April 2, 2007.
Each Crescendo Party will take all steps necessary to cease, and to cause all of
their respective Affiliates and Associates immediately to cease, all efforts to
nominate or elect Crescendo's nominees to the Board.
(e) Crescendo Withdraws Books and Records Request. Crescendo
hereby withdraws its request to inspect certain of the Company's books, records
and documents as set forth in the Demand Letters.
(f) 2007 Annual Meeting. The Company agrees that it will hold
its 2007 Annual Meeting at such time as is determined by the Board to be
prudent; provided that the Company shall use all reasonable efforts to cause the
2007 Annual Meeting to be held on or before June 28, 2007, and in no event shall
such meeting be held later than August 15, 2007. The only items to be put to a
shareholder vote at the 2007 Annual Meeting are (i) the election of two (2)
directors and (ii) the Declassification Proposal; provided, that the Company may
submit to a shareholder vote a proposal to adjourn the 2007 Annual Meeting to a
later date solely for the purpose of soliciting additional proxies in favor of
the Declassification Proposal; provided further, that proposals validly
submitted by shareholders pursuant to Rule 14a-8 promulgated under the Exchange
Act or the Company's Bylaws, and in compliance with such respective provisions,
may be acted upon at the 2007 Annual Meeting to the extent required. To date,
the Company represents that no such proposals have been submitted, other than
the proposal submitted by Crescendo.
(g) 2008 Annual Meeting. In the event that the
Declassification Proposal is not approved and adopted by the requisite vote of
the holders of Common Stock entitled to vote on such proposal at the 2007 Annual
Meeting, the Company shall promptly procure from each director of the Company
whose term as a director would otherwise continue past the 2008 Annual Meeting a
conditional resignation from the Board requiring such directors to voluntarily
submit to reelection at the 2008 Annual Meeting and, if not so reelected, to
resign from the Board effective as of the close of the 2008 Annual Meeting.
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2. Repurchase of Company Common Stock Through an Issuer Tender Offer.
The Company shall, as soon as reasonably practicable after the execution of this
Agreement (but in any event on or before April 25, 2007), commence a
$150,000,000 self tender offer for up to 11,857,707 shares of Common Stock at a
price of $12.65 per share (the "Offer"). Each of the Crescendo Parties agrees
not to comment or otherwise disclose publicly their plans and intentions as to
whether to tender shares into the Offer.
3. Termination Date. This Agreement shall remain in full force and
effect and shall be fully binding on the parties hereto in accordance with the
provisions hereof until the earlier of (i) the date on which the 2008 Annual
Meeting concludes without adjournment to a later date and (ii) June 30, 2008
(such later date, the "Termination Date").
4. Standstill.
(a) Each Crescendo Party agrees that during the period
commencing on the date hereof and ending on the Termination Date, without the
prior written consent of the Board specifically expressed in a written
resolution adopted by a majority vote of the entire Board, it will not, and will
cause each of its Affiliates, Associates, officers, agents and other Persons
acting on its behalf not to:
(i) acquire, offer or propose to acquire, or agree to
acquire (except by way of stock dividends or other distributions or
offerings made available to holders of Voting Securities generally on a
pro rata basis, provided that any such securities so received shall be
subject to the provisions hereof), directly or indirectly, whether by
purchase, tender or exchange offer, through the acquisition of control
of another Person (as such term is defined in Section 14), by joining a
partnership, limited partnership, syndicate or other "group" (within
the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) or otherwise, any Voting Securities,
if after giving effect to such acquisition it (by itself or together
with any other Crescendo Party, their respective Affiliates and
Associates and any other Person with whom it, such other Crescendo
Party or any such Affiliate or Associate has any agreement,
understanding or arrangement with respect to Voting Securities) would
beneficially own more than 9.9% of the outstanding Voting Securities.
For the purposes of computing the beneficial ownership at the time of
any purchase, the number of outstanding Voting Securities shall be
determined by the latest available Company filing with the SEC.
(ii) engage, or in any way participate, directly or
indirectly, in any "solicitation" (as such term is defined in Rule
14a-1(l) promulgated by the SEC under the Exchange Act) of proxies or
consents (whether or not relating to the election or removal of
directors), seek to advise, encourage or influence any Person with
respect to the voting of any Voting Securities; initiate, propose or
otherwise "solicit" (as such term is defined in Rule 14a-1(l)
promulgated by the SEC under the Exchange Act) shareholders of the
Company for the approval of shareholder proposals whether made pursuant
to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise; induce
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or attempt to induce any other Person to initiate any such shareholder
proposal; or otherwise communicate or seek to communicate with the
Company's shareholders or others pursuant to Rule 14a-1(l)(2)(iv) under
the Exchange Act;
(iii) form, join or in any way participate in any
"group" (within the meaning of Rule 13d-5 of Regulation 13D-G under the
Exchange Act) with respect to any Voting Securities, other than a
"group" that includes all or some lesser number of the Crescendo
Parties, but does not include any other members who are not currently
identified as a Crescendo Party;
(iv) deposit any Voting Securities in any voting
trust or subject any Voting Securities to any arrangement or agreement
with respect to the voting of any Voting Securities, except as
expressly set forth in this Agreement;
(v) otherwise act, alone or in concert with others,
to control or seek to control or influence or seek to influence the
management, the Board or policies of the Company, except as otherwise
expressly permitted in this Agreement;
(vi) have any discussions or communications, or enter
into any arrangements, understanding or agreements (whether written or
oral) with, or advise, finance, assist or encourage, any other Person
in connection with any of the foregoing, or make any investment in or
enter into any arrangement with, any other Person that engages, or
offers or proposes to engage, in any of the foregoing; or
(vii) make any proposal (including publicly disclose
or discuss any proposal) or enter into any discussion regarding any of
the foregoing, or make any proposal, statement or inquiry, or disclose
any intention, plan or arrangement (whether written or oral)
inconsistent with the foregoing, make any demand to review any of the
books and records of the Company, including any list of shareholders,
or make or publicly disclose any request to amend, waive or terminate
any provision of this Agreement;
(viii) take any initiative with respect to the
Company or any of its subsidiaries which involves making a public
announcement or that could require the Company or any of its
subsidiaries to make a public announcement regarding such initiative or
any of the activities referred to in any of the foregoing subparagraphs
(i) through (viii);
(ix) take or cause or induce others to take any
action inconsistent with any of the foregoing.
(b) Notwithstanding the foregoing, Crescendo shall be relieved
from compliance with the provisions of Section 4(a) hereof to the extent
necessary to permit it to nominate no more than two candidates for election to
the Board as a director to run as a "short slate" against the Board's slate of
nominees for the 2008 Annual Meeting and to solicit proxies in support of such
candidate(s) for election to the Board, as well as to request a shareholder list
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and related information and make any and all filings and/or announcements
necessary in the sole discretion of Crescendo, in connection with such
nomination, and to vote all Voting Securities that are then beneficially owned
by Crescendo in favor of the election of such candidate or candidates to the
Board and in any way the Crescendo Parties see fit with regard to any nominees
on the slate nominated by the Board for the 2008 Annual Meeting.
5. Release.
(a) Crescendo hereby agrees for the benefit of the Company,
and each officer, director, shareholder, agent, affiliate, employee, attorney,
assigns, predecessor, and successor, past and present, of the Company (the
Company and each such person being a "Company Released Person") as follows:
Crescendo, for themselves and for their members, officers, directors, assigns,
agents, and successors, past and present, hereby agree and confirm that,
effective from and after the date of this Agreement, they hereby acknowledge
full and complete satisfaction of, and covenant not to sue, and forever fully
release and discharge each Company Released Person of, and hold each Company
Released Person harmless from, any and all ("Claims") of any nature whatsoever,
whether known or unknown, suspected or unsuspected, including, but not limited
to those arising in respect of or in connection with the nomination and election
of directors or other actions to be taken at the 2007 Annual Meeting, occurring
any time or period of time on or prior to the date of this Agreement (including
the future effects of such occurrences, conditions, acts or omissions).
(b) The Company hereby agrees for the benefit of each
Crescendo Party, and each member, officer, director, shareholder, agent,
affiliate, employee, attorney, assign, predecessor, and successor, past and
present, of each Crescendo Party (Crescendo and each such person being a
"Crescendo Released Person") as follows: the Company, for itself and for its
officers, directors, assigns, agents, and successors, past and present, hereby
agrees and confirms that, effective from and after the date of this Agreement,
it hereby acknowledges full and complete satisfaction of, and covenants not to
sue, and forever fully releases and discharges each Crescendo Released Person
of, and hold each Crescendo Released Person harmless from, any and all Claims of
any nature whatsoever, whether known or unknown, suspected or unsuspected,
including, but not limited to those arising in respect of or in connection with
the nomination and election of directors or other actions to be taken at the
2007 Annual Meeting, occurring any time or period of time on or prior to the
date of this Agreement (including the future effects of such occurrences,
conditions, acts or omissions).
6. Representations and Warranties of Crescendo. Each Crescendo Party
represents and warrants as follows:
(a) Each Crescendo Party has the power and authority to
execute, deliver and carry out the terms and provisions of this Agreement and to
consummate the transactions contemplated hereby.
(b) This Agreement has been duly and validly authorized,
executed, and delivered by each Crescendo Party, constitutes a valid and binding
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obligation and agreement of each Crescendo Party, and is enforceable against
each Crescendo Party in accordance with its terms.
(c) Crescendo, together with their Affiliates and Associates,
beneficially own, directly or indirectly, an aggregate of 2,814,400 shares of
Common Stock of the Company as set forth by beneficial owner and amount on
Schedule A hereto and such shares of Common Stock constitute all of the Voting
Securities of the Company beneficially owned by each Crescendo Party and their
respective Affiliates and Associates.
7. Representations and Warranties of the Company. The Company hereby
represents and warrants as follows:
(a) The Company has the corporate power and authority to
execute, deliver and carry out the terms and provisions of this Agreement and to
consummate the transactions contemplated hereby.
(b) This Agreement has been duly and validly authorized,
executed and delivered by the Company, constitutes a valid and binding
obligation and agreement of the Company, and is enforceable against the Company
in accordance with its terms.
8. Specific Performance. Each of Crescendo, on the one hand, and the
Company, on the other hand, acknowledges and agrees that irreparable injury to
the other party hereto would occur in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached and that such injury would not be adequately compensable in
damages. It is accordingly agreed that Crescendo, on the one hand, and the
Company, on the other hand (the "Moving Party"), shall each be entitled to
specific enforcement of, and injunctive relief to prevent any violation of, the
terms hereof and the other party hereto will not take action, directly or
indirectly, in opposition to the Moving Party seeking such relief on the grounds
that any other remedy or relief is available at law or in equity.
9. Press Release. Immediately following the execution and delivery of
this Agreement, the Company and Crescendo shall issue the joint press release
attached hereto as Exhibit A (the "Press Release"). None of the parties hereto
will prior to the Termination Date make any public statements (including in any
filing with the SEC or any other regulatory or governmental agency, including
any stock exchange) that are inconsistent with, or otherwise contrary to, the
statements in the Press Release issued pursuant to this Section 9. Following the
date hereof, no Crescendo Party, nor any of their respective Affiliates or
Associates, shall prior to the Termination Date issue or cause the publication
of any press release or other public announcement with respect to this
Agreement, the Company, its management or the Board or the Company's business
without prior written consent of the Company, provided, however, that Crescendo
(i) shall withdraw its preliminary proxy statement in accordance with Section
1(d) of this Agreement or as otherwise required by law, (ii) may make other
filings as required by law and (iii) may, consistent with its obligations
pursuant to Section 3 hereof, make public announcements and take such positions
as it deems appropriate to the extent that the Company makes any public
announcement with regard to an extraordinary transaction of any kind or nature.
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10. Expenses. Within 10 business days following receipt of reasonably
satisfactory documentation thereof, the Company will reimburse Crescendo for its
documented out-of-pocket fees and expenses incurred in connection with its
putative Proxy Solicitation and the negotiation and execution of this Agreement
and all related activities and matters, provided such reimbursement shall not
exceed $100,000 in the aggregate.
11. No Waiver. Any waiver by either the Representative (as hereinafter
defined) or the Company of a breach of any provision of this Agreement shall not
operate as or be construed to be a waiver of any other breach of such provision
or of any breach of any other provision of this Agreement. The failure of either
the Representative or the Company to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
12. Certain Definitions. As used in this Agreement, (a) the term
"Person" shall mean any individual, partnership, corporation, group, syndicate,
trust, government or agency, or any other organization, entity or enterprise;
(b) the terms "Affiliates" and "Associates" shall have the meanings set forth in
Rule 12b-2 under the Exchange Act and shall include Persons who become
Affiliates or Associates of any Person subsequent to the date hereof; and (c)
the term "Voting Securities" shall mean any securities of the Company entitled,
or which may be entitled, to vote (whether or not entitled to vote generally in
the election of directors), or securities convertible into or exercisable or
exchangeable for such securities, whether or not subject to passage of time or
other contingencies.
13. Successors and Assigns. Neither this Agreement nor any right,
interest or obligation hereunder may be assigned by any party hereto without the
prior written consent of the other parties hereto and any attempt to do so will
be void. Subject to the preceding sentence, this Agreement is binding upon,
inures to the benefit of and is enforceable by the parties hereto and their
respective successors and assigns.
14. Survival of Representations. All representations and warranties
made by the parties in this Agreement under Sections 6 and 7 shall survive until
the Termination Date. The provisions of Section 5 of this Agreement shall
survive the Termination Date.
15. Entire Agreement; Amendments. This Agreement contains the entire
understanding of the parties hereto with respect to its subject matter. There
are no restrictions, agreements, promises, representations, warranties,
covenants or undertakings other than those expressly set forth herein. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto or their respective successors or assigns.
16. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. Notices. All notices, demands and other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
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writing and shall be deemed to have been given (a) when delivered by hand (with
written confirmation of receipt), (b) upon sending if sent by email or
facsimile, with electronic confirmation of sending; provided, however, that a
copy is sent on the same day by registered mail, return receipt requested, in
each case to the appropriate mailing and e-mail or facsimile addresses set forth
below (or to such other mailing, facsimile and e-mail addresses as a party may
designate by notice to the other parties in accordance with this provision), (c)
one (1) day after being sent by nationally recognized overnight carrier to the
addresses set forth below (or to such other mailing addresses as a party may
designate by notice to the other parties in accordance with this Section 17) or
(d) when actually delivered if sent by any other method that results in delivery
(with written confirmation of receipt):
If to the Company:
Premiere Global Services, Inc.
3399 Peachtree Road. N.E.
The Lenox Building, Suite 700
Atlanta, Georgia 30326
Attn: General Counsel
Telecopy: (404) 262-8540
Email: scott.askins@premiereglobal.com
with a copy to:
Alston & Bird LLP
950 F Street, N.W.
Washington, DC 20004
Attn: David E. Brown, Jr.
Telecopy: (202) 654-4945
Email: david.brown@alston.com
If to Crescendo or the Representative:
Eric S. Rosenfeld
c/o Crescendo Partners
10 East 53rd Street, 53rd Floor
New York, New York 10022
Telecopy: (212) 319-0760
Email: erosenfeld@crescendopartners.com
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with a copy to:
Olshan Grundman Frome Rosenzweig & Wolosky LLP
65 East 55th Street
New York, New York 10022
Attention: Steven Wolosky
Telecopy: (212) 451-2222
Email: swolosky@olshanlaw.com
or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
18. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Georgia without
reference to the conflict of laws principles thereof.
19. Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same Agreement.
20. Crescendo Representative. Crescendo hereby irrevocably appoints
Eric S. Rosenfeld as its attorney-in-fact and representative (the
"Representative"), in its place and stead, to do any and all things and to
execute any and all documents and give and receive any and all notices or
instructions in connection with this Agreement and the transactions contemplated
hereby. The Company shall be entitled to rely, as being binding on Crescendo,
upon any action taken by the Representative or upon any document, notice,
instruction or other writing given or executed by the Representative.
21. No Admission. Nothing contained herein shall constitute an
admission by any party hereto of liability or wrongdoing.
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IN WITNESS WHEREOF, each of the undersigned parties has executed or
caused this Agreement to be executed or caused to be executed on its behalf on
the date first above written.
PREMIERE GLOBAL SERVICES, INC.
By: /s/ L. Scott Askins
-----------------------------------
Name: L. Scott Askins
Title: SVP-Legal
CRESCENDO PARTNERS II, L.P., SERIES E
By: /s/ Eric S. Rosenfeld
-----------------------------------
Name: Eric S. Rosenfeld
Title: Managing Member
CRESCENDO INVESTMENTS II, LLC
By: /s/ Eric S. Rosenfeld
-----------------------------------
Name: Eric S. Rosenfeld
Title: Managing Member
CRESCENDO ADVISORS II LLC
By: /s/ Eric S. Rosenfeld
-----------------------------------
Name: Eric S. Rosenfeld
Title: Managing Member
/s/ Eric S. Rosenfeld
---------------------------------------
ERIC S. ROSENFELD
DELACOURT HOLDINGS LTD.
By: /s/ Colin D. Watson
-----------------------------------
Name: Colin D. Watson
Title: President
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/s/ Colin D. Watson
---------------------------------------
COLIN D. WATSON
THE PREMIERE FULL VALUE COMMITTEE.
By: /s/ Eric S. Rosenfeld
-----------------------------------
Name: Eric S. Rosenfeld
Title: Authorized Signatory
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Schedule A
----------
Summary of Beneficial Ownership of Shares of Common Stock of
Premiere Global Services, Inc.
- ----------------------------------- --------------------------- ----------------
Beneficial Owner Amount Beneficially Owned Percent of Class
- ----------------------------------- --------------------------- ----------------
Crescendo Capital Partners II, 2,809,400 4.0%
L.P. Series E
- ----------------------------------- --------------------------- ----------------
Crescendo Investments II, 2,809,400 4.0%
LLC
- ----------------------------------- --------------------------- ----------------
Eric S. Rosenfeld 2,809,400 4.0%
- ----------------------------------- --------------------------- ----------------
Delacourt Holdings Ltd. 5,000 Less than 1%
- ----------------------------------- --------------------------- ----------------
Colin D. Watson 5,000 Less than 1%
- ----------------------------------- --------------------------- ----------------
The Premiere Full Value 2,814,400 4.0%
Committee
- ----------------------------------- --------------------------- ----------------