1
EXHIBIT 10.21
RELEASE AND SEPARATION AGREEMENT
This Release and Separation Agreement (this "Agreement") is made and
entered into to be effective as of October 1, 1997 by and among Advanced
Telemarketing Corporation, a Nevada corporation doing business as ATC
Communications, Inc. (the "Company"), ATC Communications Group, Inc., a Delaware
corporation and the Company's parent corporation (the "Parent"), and Xxxxxx
Xxxxxxx, a resident of the State of Texas ("Employee").
RECITALS
Employee is presently employed by the Company and the Parent and the
continuation of that employment relationship is no longer desired by Employee,
on the one hand, or the Company and Parent, on the other hand.
Employee, the Company and the Parent have engaged in negotiations and
exchanged proposals and counterproposals over how to end that relationship
through their respective representatives, and Employee, the Company and the
Parent mutually wish to fully and finally resolve all existing or potential
disputes arising out of the employment relationship among Employee, the Company
and the Parent.
Employee agrees and acknowledges that the Company and the Parent have
special expertise in their businesses that has enabled them to provide unique
career opportunities for their employees, and their growth depends, to a
significant degree, on their possession of more and better information than that
available to their competitors concerning a number of matters, including but not
limited to, research, systems, development, marketing, management and other
information not generally known to others in their industry. To obtain such
information and use it successfully, the Company and the Parent have made
significant investments in research, business development, customer satisfaction
methods and techniques, business process improvements and other developments in
marketing methods and providing services to their customers.
Employee agrees and acknowledges that a covenant not to compete and a
restriction on disclosure of confidential information is essential to the
continued growth and stability of the Company's and the Parent's business and to
the continuing viability of such businesses as expressly permitted under the
terms and limitations of this Agreement.
NOW, THEREFORE, in consideration of the mutual acts, payments and
promises described and agreed to be performed herein, Employee, the Company and
the Parent agree as follows:
------ ------ ------
Initials
2
AGREEMENT
1. Resignation. Employee tenders his resignation of employment to each
of the Company and the Parent, which will be effective as of October 1, 1997
(the "Resignation Date"). Each of the Company and the Parent accepts Employee's
resignations.
2. Severance from Employment. It is understood and agreed that with the
full and complete agreement of Employee, the Company and the Parent, Employee's
employment by each of the Company and the Parent has ceased as of the
Resignation Date. Employee has resigned, and does hereby resign, from all
positions that he held with either the Company or the Parent, including without
limitation his positions as President and Chief Executive Officer and director
of the Company and the Parent. Except as otherwise expressly provided for herein
or in the "Revised Stock Option Agreement" (as defined in Section 8 of this
Agreement), as of the Resignation Date, Employee shall cease to accrue any
rights under any pension or compensation plan of either the Company or the
Parent (including without limitation any stock option plan, grant or agreement
entered into by Employee at the inception of his employment with the Company and
Parent). Notwithstanding the foregoing, for the period beginning on the
Resignation Date and ending on the earlier of September 30, 1998 or the date of
Employee's employment with another entity, Employee shall serve as a consultant
to the Company and the Parent and provide such consulting services to the
Company and Parent as the boards of directors or the executive officers of the
Company or the Parent may reasonably requested from time to time, including,
without limitation, assistance and support with respect to the prosecution or
defense of legal proceedings (including providing deposition testimony,
testifying in court, assisting the Company and Parent in discovery and in
preparing for such prosecution or defense of such proceedings, and taking such
other actions in connection therewith as are requested by the Company and Parent
from time to time). Notwithstanding the foregoing, Employee shall in no case be
deemed to be an employee of the Parent or the Company but instead shall serve as
an independent contractor for all purposes. Employee will not act or attempt to
act or represent himself, directly or by implication, as an agent of either the
Company or the Parent or in any manner assume or create, or attempt to create,
any obligation on behalf of, or in the name of either the Company or the Parent.
In the event that either Parent or Company requests Employee to incur any
expenses in connection with the services to be rendered by Employee to Parent or
Company as set forth in this Section 2 ("Services"), Parent or Company agree to
pay, in accordance with Parent's and Company's normal reimbursement policies,
all reasonable expenses actually incurred by Employee in connection with
providing the Services, including without limitation, travel, meals and lodging
expenses.
3. Acknowledgment of Full Payment of Wages and Earned Benefits.
Employee acknowledges the receipt of all wages, expense reimbursements, vacation
pay, and sick pay to which Employee is entitled as of the date of execution of
this Agreement, and further acknowledges that he has been fully paid for all
hours worked. Any outstanding reimbursable
2
------ ------ ------
Initials
3
expenses will be paid to Employee upon submission and approval of those expenses
in accordance with the Parent's customary practices.
4. Severance Payments to Employee. In consideration of this Agreement,
the Parent agrees to pay Employee severance pay at his last annualized salary
level of $400,000, payable in accordance with the Parent's standard payroll
practices (but not less than two times each month), at the address specified in
Section 16 of this Agreement, up to and including September 30, 1998. Such
severance payments shall be less applicable withholding for social security,
Medicare, and income taxes. Until the earlier of September 30, 1998 or the date
of Employee's employment with another entity, the Parent shall provide Employee
with medical and dental benefits (including coverage for Employee's immediate
family) on the same terms and conditions as provided to Employee immediately
prior to the Resignation Date. After September 30, 1998, Employee shall be
entitled to COBRA continuation benefits at his expense.
On or before February 15, 1998, the Parent will pay Employee $65,000,
which represents the annual bonus due and owing to Employee and accrued as of
June 30, 1997, less applicable withholding for social security, Medicare and
federal income taxes. Upon Employee's execution of this Agreement, the Parent
shall transfer to Employee title to the Cadillac STS, fax machine and portable
personal computer currently provided to Employee by the Parent.
The cash and other consideration paid to Employee under this Section 4
shall also constitute sufficient consideration for the consulting services
Employee renders to the Company and Parent after the Resignation Date, and
neither the Company nor the Parent shall have any other compensation obligations
to Employee with respect to such services.
5. Complete Releases. In consideration of the promises made in this
Agreement, Employee RELEASES, ACQUITS, and FOREVER DISCHARGES the Company and
the Parent from ANY and ALL causes of action, claims, damages, including
attorney's fees, Employee may have against either the Company or the Parent
which could have arisen out of Employee's employment or separation from
employment with either the Company or the Parent or his service as an officer or
director of the Company or the Parent or any other matter related to his
association with either the Company or the Parent, whether known or unknown.
Employee hereby irrevocably, unconditionally and fully releases, acquits and
forever discharges the Company and the Parent, and their respective officers,
directors, partners, shareholders, employees, attorneys, and agents, past and
present, from any and all charges, complaints, claims, liabilities, obligations,
costs, losses, debts, and expenses (including attorney's fees and costs actually
incurred), of any nature whatsoever (excluding any felonious acts) known or
unknown, suspected or unsuspected, including without limitation any rights
arising out of alleged violations of any contract, express or implied, written
or verbal, any covenant of good faith and fair dealing, express or implied, any
tort, any legal restrictions on the right of either the Company or the Parent to
terminate, discipline, or
3
------ ------ ------
Initials
4
otherwise manage employees, or any federal, state or other governmental statute,
regulation, or ordinance.
These releases and waivers include, but are not limited to, Title VII
of the Civil Rights Act of 1954, the Civil Rights Act of 1991, The Age
Discrimination in Employment Act, the Employee Retirement Income Security Act of
1974, the Americans with Disabilities Act, the Rehabilitation Act of 1973, the
Equal Pay Act, the False Claims Act, the Civil Rights Act of 1866, the Fair
Labor Standards Act, the Occupational Safety and Health Act, the Family and
Medical Leave Act, the Texas Commission on Human Rights Act, the Texas Payday
Law, the Texas Workers' Compensation Act any causes of action or claim arising
under analogous state laws or local ordinances or regulations, any common law
principle or public policy, including all suits in tort or contract, or under
either the Company's or the Parent's personnel policies or any contract of
employment that may exist between Employee and either the Company or the Parent.
Employee knowingly and voluntarily waives any existing rights he may
have pursuant to the Age Discrimination in Employment Act of 1967 and the Older
Workers Benefit Protection Act. Further, Employee acknowledges the receipt of
good and valuable consideration set forth in this Agreement in exchange for this
waiver of potential claims.
In consideration of the promises made in this Agreement, each of
Company and Parent RELEASES, ACQUITS, and FOREVER DISCHARGES Employee from ANY
and ALL causes of action, claims and damages, including attorney's fees, Company
or Parent may have against Employee which could have arisen out of Employee's
employment or separation from employment with either the Company or the Parent
or his service as an officer or director of the Company or the Parent or any
other matter related to his association with either the Company or the Parent,
whether known or unknown. Each of Company and Parent hereby irrevocably,
unconditionally and fully releases, acquits and forever discharges Employee from
any and all charges, complaints, claims, liabilities, obligations, costs,
losses, debts and expenses (including attorney's fees and costs actually
incurred), of any nature whatsoever (excluding any felonious acts) known or
unknown, suspected or unsuspected, including without limitation any rights
arising out of alleged violations of any contract, express or implied, written
or verbal, any covenant of good faith and fair dealing, express or implied, or
any tort, or any federal, state or other governmental statute, regulation, or
ordinance. Notwithstanding the foregoing, nothing herein shall constitute a
release of Employee from causes of action, claims, or damages, including
attorney's fees, that may arise after the Resignation Date relating to
Employee's service as a consultant of the Parent.
It is expressly agreed and understood by Employee, the Company and the
Parent that this Agreement is a general release.
6. Promise Not to Xxx. Employee represents that Employee has not
heretofore filed any charges or complaints against either the Company or the
Parent with any federal, state or local governmental agencies. Employee further
agrees that Employee will not file any
4
------ ------ ------
Initials
5
charges or complaints against either the Company or the Parent based on
Employee's employment with either the Company or the Parent or the severance
therefrom.
In consideration of the promises made by each of the Company and the
Parent in this Agreement, Employee promises and agrees never to voluntarily join
in, or commence any action, or proceeding on behalf of himself, or any other
person, or entity before any court, administrative agency, or other forum
against either the Company or the Parent, pertaining in any way to or arising
out of his employment or association with either the Company or the Parent, his
resignation or employment, or any other event that occurred on or before the
date of this Agreement, except as may be necessary to enforce: (a) this
Agreement; (b) Employee's rights under state worker's compensation laws (for
occupational illness or injury only) or unemployment compensation laws; or (c)
Employee's rights under the Parent's medical or dental benefit plans.
Further, Employee agrees to withdraw with prejudice any previously
filed charges or suits arising out of his employment or association with or
resignation and termination from the Company and the Parent. Employee further
agrees not to actively or materially encourage or aid any person in
contemplating, filing, or prosecuting any action or proceeding against either
the Company or the Parent in any way related to matters that occurred during the
course of Employee's employment or association with the Company and the Parent
prior to the date of this Agreement.
The Company and the Parent each represents that neither has heretofore
filed any charges or complaints against Employee with any federal, state or
local governmental agencies. The Company and the Parent further agree that
neither will file any charges or complaints against either the Company or the
Parent based on Employee's employment with either the Company or the Parent or
the severance therefrom.
In consideration of the promises made by Employee in this Agreement,
each of the Company and the Parent promise and agree never to voluntarily join
in, or commence any action, or proceeding on behalf of itself, or any other
person, or entity before any court, administrative agency, or other forum
against the Employee, pertaining in any way to or arising out of Employee's
employment or association with either the Company or the Parent, his resignation
or employment, or any other event that occurred on or before the date of this
Agreement, except as may be necessary to enforce this Agreement.
Further, each of the Company and the Parent agrees to withdraw with
prejudice any previously filed charges or suits arising out of Employee's
employment or association with or resignation and termination from the Company
and the Parent. Each of the Company and the Parent further agrees not to
actively or materially encourage or aid any person in contemplating, filing, or
prosecuting any action or proceeding against Employee in any way related to
matters that occurred during the course of Employee's employment or association
with the Company and the Parent prior to the date of this Agreement.
5
------ ------ ------
Initials
6
7. No Admission. Each of Employee, the Company and the Parent
understands and acknowledges that by entering into this Agreement, none of
Employee, the Company or the Parent admits to any unlawful conduct or wrongdoing
in connection with Employee's employment with the Company and the Parent or the
termination thereof.
8. Stock Options. Pursuant to that certain ATC Communications Group,
Inc. Non-Qualified Stock Option Agreement, dated as of September 5, 1996 (the
"Option Agreement"), Employee has been granted an option to acquire 600,000
shares of common stock of the Parent at an exercise price of $16.1875 per share,
of which 200,000 shares of common stock are vested as of the Resignation Date
(the "Options"). Upon Employee's execution of this Agreement, the Option
Agreement will be deemed amended to (a) extend the expiration of the Options to
the earlier of September 30, 2002 or twelve (12) months after the death of
Employee, (b) reduce the exercise price of the Options to $4.00 per share and
(c) reflect that the options to purchase 400,000 shares of common stock that
were unvested as of the date hereof have expired (the "Revised Stock Option
Agreement").
9. Non-Competition Agreement. Employee understands that during the
course of his employment by the Company and the Parent, Employee had access to
and the benefit of the information referred to in the Recitals above, and
represented the Company and the Parent and their affiliates and developed
contacts and relationships with other persons and entities on behalf of such
entities, including but not limited to customers, potential customers and other
employees of such entities. To protect such entities' interest in this
information and in these contacts and relationships and in consideration of the
promises made by the Company and the Parent in this Agreement, Employee agrees
and covenants that for a period beginning on the Resignation Date to the later
of September 30, 1998 or the date of expiration or exercise of all of the
Options, without the prior written approval of the Company and the Parent,
Employee will not, in connection with any business that is engaged in, or is
about to be engaged in, by the Company or the Parent, which includes but is not
limited to inbound and outbound telecommunications-based marketing services and
customer service functions, telesourcing (as the Company or the Parent has used
such term), and the consulting, design and implementation of these services,
including organization and investment in related industries or professions (the
"Business"), directly or indirectly, either as an individual or as an employee,
partner, officer, director, shareholder, advisor, or consultant or in any other
capacity whatsoever, of any person (other than ownership of less than 5% of the
issued and outstanding voting securities of a publicly held corporations): (a)
recruit, hire, assist others in recruiting or hiring, discuss employment with,
or refer to others for employment any person who is, or within the one (1) year
period immediately preceding the date of any such activity was, an employee of
the Company or the Parent or their affiliates; or (b) conduct or assist others
in conducting any business or activity that competes with the Business in the
United States, its territories or possessions.
Employee understands and agrees that the scope of the foregoing
covenant is reasonable as to time, area and persons and is necessary to protect
the legitimate business interests of the Company, the Parent and their
affiliates. Employee further agrees that such covenant will be regarded as
divisible and will be operative as to time, area and persons to the extent that
it may
6
------ ------ ------
Initials
7
be so operative, and if any part of such covenant is declared invalid,
unenforceable, or void as to time, area or persons, the validity and
enforceability of the remainder will not be affected.
If Employee violates the restrictive covenants of this Section 9 and
the Company or the Parent brings legal action for injunctive or other relief,
neither the Company nor the Parent shall be deprived of the benefit of the full
period of the restrictive covenant as a result of the time involved in obtaining
the relief. Accordingly, Employee agrees that the regularly scheduled expiration
date of such covenant shall be extended by the same amount of time that Employee
is determined to have violated such covenant.
10. Confidentiality. Employee acknowledges that he has learned
Confidential Information (as defined below) relating to the business conducted
and to be conducted by the Company, the Parent or their affiliates. In
consideration of the promises made in this Agreement by the Company and the
Parent, Employee agrees that he will not disclose or use or authorize any third
party to disclose or use any such Confidential Information, without prior
written approval of the Company or the Parent. As used in this Section 10,
"Confidential Information" shall mean information disclosed to or known to
Employee as a direct or indirect consequence of or through his employment with
the Company or the Parent, about any customer's, supplier's or the Company's or
the Parent's business, methods, business plans, operations, products, processes,
and services, including, but not limited to, information relating to research,
development, inventions, recommendations, programs, systems, and systems
analyses, flow charts, finances, and financial statements, marketing plans and
strategies, merchandising, pricing strategies, merchandise sources, client
sources, system designs, procedure manuals, automated data programs, financing
methods, financial projections, terms and conditions of arrangements of any
business, computer software, terms and conditions of business arrangements with
clients or suppliers, reports, personnel procedures, supply and services
resources, names and addresses of clients, the Company's or the Parent's
contacts, names of professional advisors, and all other information pertaining
to clients and suppliers, including, but not limited to assets, business
interests, personal data and all other information pertaining to the Company or
the Parent, clients or suppliers whatsoever, including all accompanying
documentation therefor. All information disclosed to Employee, or to which
Employee had access during the period of his employment, for which there is any
reasonable basis to be believed is, or which appears to be treated by either the
Company or the Parent as Confidential Information, shall be presumed to be
Confidential Information hereunder. Confidential Information shall not, however,
include information that (a) is publicly known or becomes publicly known through
no fault of Employee, or (b) is generally or readily obtainable by the public,
or (c) constitutes general skills, knowledge and experience acquired by Employee
during his employment with the Company and the Parent .
Employee agrees that all documents of any nature pertaining to
activities of the Company, the Parent or their affiliates, or that include any
Confidential Information, in his possession now or at any time during the term
of his employment, including without limitation, memoranda, notebooks, notes,
data sheets, records and computer programs, are and shall be the property of
such entity and that all copies thereof shall be surrendered to the appropriate
entity simultaneously with Employee's execution of this Agreement.
7
------ ------ ------
Initials
8
11. Inventions; Developments. Employee represents and warrants that he
has notified the Company and the Parent of all discoveries, inventions,
innovations, or improvements which are related to the Business or to the
business of any customer or supplier (collectively called "Developments")
conceived or developed by Employee during the term of the Employee's employment.
Developments shall include, without limitation, the term "telesourcing,"
business activities, strategies and tactics that comprise telesourcing,
developments in computer software, logical systems, algorithms, and any or all
other intellectual properties related to the Business. All Developments,
including but not limited to all written documents pertaining thereto, shall be
the exclusive property of the Company or the Parent, as the case may be, and
shall be considered Confidential Information subject to the terms of this
Agreement. Employee agrees that when appropriate, and upon written request of
the Company or the Parent, as the case may be, the Employee will acknowledge
that Developments are "works for hire" and will file for tradenames, trademarks,
patents or copyrights with regard to any or all Developments and will sign
documentation necessary to evidence ownership of Developments in the Company or
the Parent, as the case may be.
12. No Disparagement. In consideration of the promises made by the
Company, the Parent and Employee in this Agreement, the parties hereto agree not
to, directly or indirectly, or in any individual or representative capacity
whatsoever, make any statement, oral or written, or perform any act or omission
that is or could be detrimental in any material respect to the goodwill of any
of the Company, the Parent or Employee for a period of at least one (1) year
from the Resignation Date. Any of the Company, the Parent or Employee, however,
may give truthful and nonmalicious testimony if properly subpoenaed to testify
under oath.
Each of the Company and the Parent agrees not to, directly or
indirectly, in any individual or representative capacity whatsoever, make any
statement, oral or written, or perform any act or omission that is or could be
detrimental in any material respect to the good will of Employee; provided that
any truthful statement made by either the Company or the Parent in good faith
shall not violate this subsection. Similarly, each of the Company and the Parent
agrees to use reasonable efforts to ensure that its employees do not, directly
or indirectly, in any individual or representative capacity whatsoever, make any
statement, oral or written, or perform any act or omission that is or could be
detrimental in any material respect to the goodwill of Employee; provided that
any truthful statement made by either the Company or the Parent or any of its
employees in good faith shall not violate this subsection.
13. Remedies for Breach. In the event that any party breaches this
Agreement in any material respect, each non-breaching party's fulfillment of any
of its promises herein shall be deemed sufficient consideration for the promises
made, and each non-breaching party may enforce these promises as if it had fully
satisfied every one of its obligations.
A partial, nonmaterial breach of this Agreement by any party hereto
shall not render the entire Agreement unenforceable, and, in the event of such
breach, the remainder of this
8
------ ------ ------
Initials
9
Agreement shall continue in full force and effect. A failure by any party to
enforce its rights with respect to a breach of a provision of this Agreement
shall not constitute a waiver of the entire Agreement.
Each of the Company, the Parent and Employee here acknowledges that a
violation or attempted violation of any of the covenants contained in this
Agreement will cause irreparable damage to the other party, and accordingly each
party agrees that the other parties shall be entitled as a matter of right to an
injunction, out of any court of competent jurisdiction, restraining any
violation or further violation of such agreements by the violating party or any
employees, partners or agents of the violating party; such right to an
injunction, however, shall be cumulative and in addition to whatever other
remedies the injured party may have.
14. Nature of the Agreement. This Agreement and all its provisions are
contractual, not mere recitals, and shall continue in permanent force and
effect, unless revoked as provided herein. In the event that any portion of this
Agreement is found to be unenforceable for any reason whatsoever, the
unenforceable provision shall be severed and the remainder of the Agreement
shall continue in full force and effect.
15. Reliance. The Company and the Parent advised Employee to seek the
advice of legal counsel prior to signing this Agreement. The parties hereto
acknowledge, warrant and represent that (a) they have relied solely on their own
judgment and that of their attorneys and representatives regarding the
consideration for, and the terms of this Agreement, (b) they have been given a
reasonable period to consider this Agreement, (c) they have read and understand
the Agreement, (d) they understand that it includes a general release of claims
against each other, and (e) no statements made by the other have in any way
coerced or unduly influenced the execution of this Agreement.
Furthermore, Employee acknowledges that in accordance with the Age
Discrimination in Employment Act and the Older Workers Benefit Protection Act,
he has been given the opportunity to review this Agreement for at least
twenty-one (21) days and if Employee executes this Agreement prior to the end of
such twenty-one (21) day period, Employee knowingly and voluntarily waives any
rights he may have with respect thereto. The Company and the Parent further
advises Employee that in accordance with the Age Discrimination in Employment
Act and the Older Workers Benefit Protection Act, he has seven (7) days after
execution of this Agreement to revoke this Agreement.
16. Notices. Any notice, demand or request required or permitted to be
given or made under this Agreement shall be in writing and shall be deemed given
or made when delivered in person, when sent by United States registered or
certified mail, or postage prepaid, or when faxed to a party at its address or
facsimile number specified below:
9
------ ------ ------
Initials
10
If to the Company: Advanced Telemarketing Corporation,
dba ATC Communications, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile number: (000) 000-0000
If to the Parent: ATC Communications Group, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile number: (000) 000-0000
If to Employee: Xxxxxx Xxxxxxx
0 Xxxxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Facsimile number: (000)-000-0000
The parties to this Agreement may change their addresses for notice in
the manner provided above.
17. Counterparts and Photocopies. This Agreement may be executed in
counterparts and each executed counterpart shall be as effective as a signed
original. Photographic copies of such signed counterparts may be used in lieu of
the originals for any purpose.
18. Paragraph Titles Not Binding. The use of paragraph titles in this
Agreement is for ease of reference only. Such titles are not to be considered
terms of this Agreement.
19. Governing Law; Arbitration.
(a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW.
(b) All claims, disputes, and controversies arising out of or
relating to this Agreement or the performance, breach, validity, interpretation,
application or enforcement hereof, including any claims for equitable relief or
claims based on contract, tort, statute, or any alleged breach, default, or
misrepresentation in connection with any of the provisions hereof, will be
resolved by binding arbitration. Notwithstanding the foregoing, any party to
this Agreement shall have the right, at its option, to bring any claims for
injunctive or other equitable relief before the State and Federal Courts of the
State of Texas, and each of Employee, the Company and the Parent hereby accepts
and irrevocably submits itself to the non-exclusive jurisdiction of such courts
and agrees and consents that service of process
10
------ ------ ------
Initials
11
may be made upon it in any such legal proceeding relating to this Agreement by
any means allowed under Texas or Federal law, as applicable. Venue for any such
legal proceeding shall be in Dallas County, Texas.
(c) A party may initiate arbitration by sending written notice
of its intention to arbitrate to the other parties and to the American
Arbitration Association ("AAA") office located in Dallas, Texas (the
"Arbitration Notice"). The Arbitration Notice will contain a description of the
dispute and the remedy sought. The arbitration will be conducted at the offices
of the AAA in Dallas, Texas before an independent and impartial arbitrator who
is selected by mutual agreement, or, in the absence of such agreement, before
three (3) independent and impartial arbitrators, of whom the Company and the
Parent will appoint one and Employee will appoint one, with the third being
chosen by the two appointed by the parties. In no event may the demand for
arbitration be made after the date when the institution of a legal or equitable
proceeding based on such claim, dispute, or other matter in question would be
barred by the applicable statute of limitations.
(d) The arbitration and any discovery conducted in connection
therewith will be conducted in accordance with the Commercial Rules of
arbitration and procedures established by AAA in effect at the time of the
arbitration, including without limitation the expedited procedures set forth
therein (the "AAA Rules"). The decision of the arbitrators will be final and
binding on all parties and their successors and permitted assignees. The
judgment upon the award rendered by the arbitrators may be entered by any court
having jurisdiction thereof. The arbitrators will be selected no later than 30
days after the date of the Arbitration Notice. The arbitration hearing will
commence no later than 60 days after the arbitrators is selected. The
arbitrators will render a decision no later than 30 days after the close of the
hearing, in accordance with AAA Rules. The arbitrator's fees and costs will
conform to the then current AAA fee schedule and will be borne by the parties as
the arbitrators shall direct.
20. Death of Employee. In the event that Employee should die before the
Parent pays Employee the full amount of the $400,000 payment set forth in
Section 4 of this Agreement, then Parent agrees to continue to make the
severance payments to Employee's spouse, or if the Employee's spouse predeceases
Employee, to Employee's estate.
21. Assignment. The obligations and duties of the parties set forth in
this Agreement may not be assigned or delegated; provided, however, that nothing
in this Agreement shall preclude either the Parent or the Company from
consolidating or merging with, or transferring all or substantially all of its
assets to, another corporation, person or entity ("Entity"). Upon such a
consolidation, merger or transfer of assets, the terms the "Parent" and the
"Company" shall mean such other Entity or Entities that the Parent and/or the
Company consolidate or merge into or with, or transfer all or substantially all
of the assets of the Parent and/or the Company to, and in any such event, the
Entity or Entities shall be bound and automatically assume, without any specific
action on the part of the Entity or Entities, this Agreement and all obligations
and undertakings of the Parent and/or the Company set forth in this Agreement,
and this Agreement shall continue in full force and effect, including but not
11
------ ------ ------
Initials
12
limited to the obligation of Parent to make the severance payments set forth in
Section 4 of this Agreement, and the right of Employee to exercise the Options
set forth in Section 8 of this Agreement. The obligations and duties of Employee
hereunder shall be personal and not assignable or delegable by the Employee in
any manner whatsoever.
22. Entire Agreement. This Agreement constitutes the entire and
exclusive statement of the agreement between the parties with respect to its
subject matter and there are no oral or written representations, understandings
or agreements relating to this Agreement which are not fully expressed herein.
The parties agree that any other terms or conditions included in written or
verbal exchanges or representations made by the parties shall not be
incorporated herein or be binding unless expressly agreed upon in writing by
authorized representatives of the parties subsequent to the Resignation Date.
Employee, the Company and the Parent agree and acknowledge that upon execution
of this Agreement, all terms and conditions of the Employment Agreement, dated
September 5, 1996, by and among Employee, the Parent and the Company are null
and void and such Employment Agreement is no longer in effect.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
THE UNDERSIGNED ACKNOWLEDGE THAT WE HAVE CAREFULLY READ THE FOREGOING
AGREEMENT, THAT WE UNDERSTAND ALL OF ITS TERMS, AND THAT WE ARE ENTERING INTO IT
VOLUNTARILY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
------ ------ ------
Initials
13
Executed at Dallas, Texas by Employee, acting in his individual
capacity, and by an authorized representative of each of the Company and the
Parent as of the Resignation Date.
ADVANCED TELEMARKETING CORPORATION,
dba ATC Communications, Inc.
By: /s/ Xxxxx X. Xxxx, Xx.
---------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Secretary
ATC COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxx X. Xxxx, Xx.
---------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Senior Vice President
/s/ Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxx Xxxxxxx
13
------ ------ ------
Initials
