EMPLOYMENT AGREEMENT
--------------------
This Agreement is made as of this 18th day of March 1998 between
TeleSpectrum Worldwide Inc., a Delaware corporation (the "Company"), and Xxxxx
X. Xxxxxx (the "Employee").
RECITALS
--------
The Company desires to employ the Employee, and the Employee desires to
provide services to the Company, upon the terms and conditions hereinafter set
forth.
WITNESSETH:
----------
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. Employment.
----------
(a) During the term of the Employee's employment under this Agreement (the
"Employment Term"), the Employee shall be the Chief Executive Officer and
President of the Company and shall perform such duties consistent with such
office as described in the Company's Bylaws (a copy of which has been furnished
to the Employee) and as are assigned by the Company's Board of Directors (the
"Board"). In addition, the Company shall appoint Employee to the Board to fill
the current vacancy in such Board and shall initially serve as Chairman of the
Board, subject to annual reelection by the members of the Board as Chairman by
the Board. The current members of the Board have expressed their intention to
re-elect the Employee as the Chairman of the Board during such time as he
remains a director and the Chief Executive Officer of the Company.
(b) Employee represents to the Company that he is not subject or a party
to any employment agreement, non-competition covenant, non-disclosure agreement
or any other agreement, covenant, understanding or restriction of any nature
which would prohibit Employee from executing this Agreement and performing fully
his duties and responsibilities hereunder.
2. Term. The Employment Term shall begin on the date hereof and, unless
----
terminated earlier pursuant to the terms of this Agreement, continue until March
19, 2001.
3. Compensation for Employment.
---------------------------
(a) The basic annual rate of compensation of the Employee for his
employment services to the Company during the Employment Term shall be $200,000
(such amount is referred to herein as the "Salary"), which the Company shall pay
to the Employee in equal installments in accordance with the normal payroll
policies of the Company.
(b) The Employee shall be eligible to receive annual bonuses (such amounts
are referred to herein as the "Bonus") in such amounts as approved by the
Compensation Committee of the Board of Directors and participate in such bonus
programs as are established for executive officers of the Company.
(c) On the date hereof, the Company shall grant Employee stock options
(the "Base Options") to purchase an aggregate of 1,500,000 shares of the
Company's common stock, par value $.01 per share (the "Common Stock"). The Base
Options will contain such terms as contained in the forms of Grant Letter
attached as "Exhibits A and B" hereto, including vesting in three equal amounts
(each representing 33.33% of the shares underlying such option) beginning on the
one year anniversary of the date of grant and on the next two successive annual
anniversary dates of the date of grant In addition, on the date hereof, the
Company shall grant Employee a stock option (the "Performance Option") to
purchase 500,000 shares of Common Stock. As soon as reasonably practicable after
the date of this Agreement, the Company shall register the shares of Common
Stock underlying the Base and Performance Options, to the extent not already so
registered, under the Securities Act of 1933, as amended, pursuant to a
Registration Statement on Form S-8. The Performance Option will include such
terms as contained in the form of Grant Letter attached as "Exhibit C" hereto,
including the following vesting schedule:
(i) 166,667 shares if the closing price of the Common Stock on
Nasdaq reaches $8.00 per share for ten consecutive trading days prior to the 18
month anniversary of this Agreement;
(ii) 166,667 shares if the closing price of the Common Stock on
Nasdaq reaches $12.00 per share for ten consecutive trading days prior to the 27
month anniversary of this Agreement;
(iii) 166,666 shares if the closing price of the Common Stock on
Nasdaq reaches $18.00 per share for ten consecutive trading days prior to the 36
month anniversary of this Agreement; and
(iv) if not vested by the fourth anniversary of the date of this
Agreement, then all shares underlying the Performance Option shall automatically
vest on such date.
(d) Concurrent with the execution and delivery of this Agreement, the
Employee and the Company have also executed and delivered a subscription
agreement attached as Exhibit "D" hereto pertaining to the purchase of shares of
Common Stock by the Employee.
(e) During the Employment Term, the Company shall provide the Employee
with fringe benefits that are substantially equivalent to the fringe benefits
specified on Exhibit "E" (the "Fringe Benefits") at such levels that are
provided to the senior officers of the Company.
-2-
(f) All amounts payable by the Company under Sections 3(a) and (b) and the
Fringe Benefits allowed under Section 3(e) shall be subject to proration based
upon the number of days in each such year that the Employee was employed by the
Company hereunder.
4. Termination Without Compensation.
--------------------------------
(a) Total Disability. If the Employee becomes totally disabled (as defined
----------------
below), the Company may terminate the Employment Term by notice to the Employee,
and as of the termination date, the Company shall have no further liability or
obligation to the Employee hereunder except as follows: the Employee shall
receive (i) unpaid Salary, Bonus, if any, and Fringe Benefits that have accrued
through the date of termination; and (ii) whatever benefits that he may be
entitled to receive under any then existing disability benefit plans of the
Company, including any such plans included in the Fringe Benefits. For the
purposes hereof, the Employee shall be deemed to be "totally disabled" if the
Employee is considered totally disabled under any group disability plan
maintained by the Company and in effect at that time, or in the absence of any
such plan, under applicable Social Security regulations. In the event of any
dispute under this Section 4(a), the Employee shall submit to a physical
examination by a licensed physician mutually satisfactory to the Company and the
Employee, the cost of such examination to be paid by the Company, and the
determination of such physician shall be determinative.
(b) Death. If the Employee dies, this Employment Agreement shall terminate
-----
on the date of death, and thereafter the Company shall not have any further
liability or obligation to the Employee, his executors, administrators, heirs,
assigns or any other person claiming under or through his except that the
Employee's estate shall receive any unpaid Salary, Bonus, if any, and Fringe
Benefits that have accrued through the date of termination.
(c) Cause. The Company may terminate the Employment Term for "cause" by
-----
giving the Employee 30 days' notice of the termination date, and as of the
termination date, the Company shall not have any further liability or obligation
to the Employee, except that the Employee shall receive any unpaid Salary,
Bonus, if any, and Fringe Benefits that have accrued through the date of
termination. For purposes of this Agreement, "cause" shall mean the Employee's
(i) breach of (other than by reason of illness, injury or incapacity) of any of
the material terms or provisions of this Agreement, (ii) the willful and
substantial failure to comply fully with the lawful directives of the Board,
(iii) substantial and willful misconduct, (iv) material neglect of the Company's
business, (v) conviction of a felony or other crime involving moral turpitude,
(vi) misappropriation of funds or (vii) habitual abuse of alcohol, narcotics or
other controlled substances. In the case of a termination for "cause," the
notice of termination shall specify the basis for the Company's determination of
"cause"; provided, however, that in the case of conduct described in clauses
-------- -------
(i), (ii), (iii) and (iv) above, such conduct shall not constitute "cause" for
the purposes of this paragraph (c) unless (A) the Board shall have given the
Employee notice setting forth with specificity (1) the conduct deemed to
constitute "cause," (2) reasonable action that would remedy the objectionable
conduct, and (3) a reasonable time (not less than 5 days) within which the
Employee may take such remedial action,
-3-
and (B) the Employee shall not have taken such specified remedial action within
such specified reasonable time.
(d) Resignation. The Employee shall have the right to terminate the
-----------
Employment Term at any time by giving the Company 60 days' notice of the
termination date. Under such circumstances, the Company shall not have any
further liability or obligation to the Employee, except that the Employee shall
receive any unpaid Salary, Bonus, if any, and Fringe Benefits that have accrued
through the date of termination, net of any liabilities that the Employee may
have to the Company.
5. Termination With Compensation. The Company shall have the right to
-----------------------------
terminate the Employment Term without cause at any time by giving the Employee
30 days' notice of the termination date. In the event of a termination of the
Employment Term pursuant to this Section 5, the Company shall continue to pay to
the Employee the Salary and continue to provide the Fringe Benefits listed in
paragraph (a) of Exhibit B hereto for a period ending one year after the date of
any such termination. The Salary to be paid and the Fringe Benefits to be
provided under this Section 5 are referred to herein as the "Termination
Compensation." The Employee shall not be entitled to any Termination
Compensation unless the Employee executes and delivers to the Company after a
notice of termination a release in a form satisfactory to the Company in its
sole discretion by which the Employee releases the Company from any obligations
and liabilities of any type whatsoever under this Agreement, except for the
Company's obligations with respect to the Termination Compensation. The parties
hereto acknowledge that the Termination Compensation to be provided under this
Section 5 is to be provided in consideration for the above-specified release.
6. Agreement Not to Compete.
------------------------
(a) The Employee covenants that for the period beginning on the
termination of Employee's employment hereunder and ending on the second
anniversary of the date of such termination of employment hereunder (the
"Restricted Period"), he will not, directly or indirectly, own, manage, operate,
join, control, finance or participate in the ownership, management, operation,
control or financing of, or be connected as a partner, principal, agent,
representative, consultant or otherwise with or use or permit his name to be
used in connection with, any business or enterprise engaged directly or
indirectly in competition with the business conducted by the Company at any time
during such period within any portion of the United States in the direct
marketing business which includes inbound and outbound telemarketing, customer
retention and interactive voice response (the "Business"). It is recognized by
the Employee and the Company that the Business is and is expected to continue to
be conducted throughout the United States and that more narrow geographical
limitations of any nature on this non-competition covenant (and the non-
solicitation covenant set forth in Section 6(b)) are therefore not appropriate.
The foregoing restriction shall not be construed to prohibit the ownership by
Employee as a passive investment of not more than five percent (5%) of any class
of securities of any corporation which is engaged in any of the foregoing
businesses having a class of securities registered pursuant to the Securities
Exchange Act of 1934.
-4-
(b) The Employee further covenants that during the Restricted Period,
he will not, either directly or indirectly, (i) call on or solicit any person
who or which has been a customer of the Company with respect to the activities
prohibited by Section 6(a) or (ii) solicit the employment of any person who is
employed by the Company during such period on a full or part-time basis.
(c) The Employee recognizes and acknowledges that by reason of his
employment by the Company he will have access to Confidential Information
relating to the Business. The Employee acknowledges that such Confidential
Information is a valuable and unique asset and covenants that he will not
disclose any such Confidential Information after the date hereof to any person
for any reason whatsoever, unless such information (i) is in the public domain
through no wrongful act of Employee, (ii) has been rightfully received from a
third party without restriction and without breach of this Agreement or (iii)
except as may be required by law.
(d) The Employee acknowledges that the restrictions contained in this
Section 6 are reasonable and necessary to protect the legitimate interests of
the Company, and that any violation will result in irreparable injury to the
Company.
(e) The Employee agrees that the Company shall be entitled to
preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as an equitable accounting of all earnings, profits and
other benefits arising from any violation of this Section 6, which rights shall
be cumulative and in addition to any other rights or remedies to which the
Company may be entitled. In the event that any of the provisions of this Section
6 should ever be adjudicated to exceed the time, geographic, product or service,
or other limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, product or service, or other limitations permitted by applicable
law.
7. Inventions, Designs and Product Developments. All inventions, innovations,
--------------------------------------------
designs, ideas and product developments, developed or conceived by the Employee,
solely or jointly with others, whether or not patentable or copyrightable, at
any time during the Employment Term or during his employment by the Company
prior to the commencement of the Employment Term and that relate to the actual
or planned business activities of the Company (collectively, the "Developments")
and all of the Employee's right, title and interest therein, shall be the
exclusive property of the Company. The Employee hereby assigns, transfers and
conveys to the Company all of his right, title and interest in and to any and
all such Developments. The Employee shall disclose fully, as soon as
practicable and in writing, all material and substantial Developments to the
Board. At any time and from time to time, upon the request of the Company, the
Employee shall execute and deliver to the Company any and all instruments,
documents and papers, give evidence and do any and all other reasonable acts
that, in the opinion of counsel for the Company, are or may be necessary or
desirable to document such transfer or to enable the Company to file and
prosecute applications for and to acquire, maintain and enforce any and all
patents, trademark registrations or copyrights under United States or foreign
law with respect to any such Developments or to obtain any extension,
validation, re-issue, continuance or renewal of any such patent, trademark or
copyright. The Company will be
-5-
responsible for the preparation of any such instruments, documents and papers
and for the prosecution of any such proceedings and will reimburse the Employee
for all reasonable expenses incurred by his in compliance with the provisions of
this Section 7.
8. Confidential Information.
------------------------
(a) The Employee has had and will have possession of or access to
confidential information relating to the business of the Company, including
writings, equipment, processes, drawings, reports, manuals, invention records,
financial information, business plans, customer lists, the identity of or other
facts relating to prospective customers, inventory lists, arrangements with
suppliers and customers, computer programs, or other material embodying trade
secrets, customer or product information or technical or business information of
the Company. All such information, other than any information that is in the
public domain through no act or omission of the Employee or which he is
authorized to disclose, is referred to collectively as the "Company
Information." During and after the Employment Term, the Employee shall not (i)
use or exploit in any manner the Company Information for himself or any person,
partnership, association, corporation or other entity other than the Company,
(ii) remove any Company Information, or any reproduction thereof, from the
possession or control of the Company or (iii) treat Company Information
otherwise than in a confidential manner.
(b) All Company Information developed, created or maintained by the
Employee, alone or with others while employed by the Company, and all Company
Information maintained by the Employee thereafter, shall remain at all times the
exclusive property of the Company. The Employee shall return to the Company all
Company Information, and reproductions thereof, whether prepared by his or
others, that are in his possession immediately upon request and in any event
upon the completion of his employment by the Company.
9. Remedies. The Employee expressly acknowledges that the remedy at law for
--------
any breach of Sections 6, 7 and 8 will be inadequate and that upon any such
breach or threatened breach, the Company shall be entitled as a matter of right
to injunctive relief in any court of competent jurisdiction, in equity or
otherwise, and to enforce the specific performance of the Employee's obligations
under these provisions without the necessity of proving the actual damage to the
Company or the inadequacy of a legal remedy.
10. General.
-------
(a) Governing Law. This Agreement is made and entered into in the
-------------
Commonwealth of Pennsylvania, and shall in all respects be interpreted, enforced
and governed by and under the laws of the Commonwealth.
(b) Company. For purposes of Sections 6, 7, 8 and 9, the term "Company"
-------
shall be deemed to include any incorporated or unincorporated entities that are
controlled, directly or
-6-
indirectly, by the Company through ownership, agreement or otherwise, and any
such entity to which the Company assigns its rights hereunder.
(c) Binding Effect. All of the terms and provisions of this Agreement
--------------
shall be binding upon and inure to the benefit and be enforceable by the
respective heirs, representatives, successors (including any successor as a
result of a merger or similar reorganization) and assigns of the parties hereto,
except that the duties and responsibilities of the Employee hereunder are of a
personal nature and shall not be assignable in whole or in part by the Employee.
(d) Notices. All notices required to be given under this Agreement shall
-------
be in writing and shall be deemed to have been given when personally delivered
or when mailed by registered or certified mail, postage prepaid, return receipt
requested, or when sent by Federal Express or other overnight delivery service,
addressed as follows:
TO EMPLOYEE:
Xx. Xxxxx X. Xxxxxx
000 Xxxx Xxxxxxx Xx.
Xxxxxxxxx, XX 00000
With a copy to:
Xxxxx & Stant, P.C.
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000-0000
Fax: 000-000-0000
Attn: Xxxx X. Paris, Jr., Esquire
TO THE COMPANY:
000 X. Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Chief Financial Officer
With a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esquire
-7-
(e) Entire Agreement; Modification. This Agreement constitutes the entire
------------------------------
agreement of the parties hereto with respect to the subject matter hereof and
may not be modified or amended in any way except in writing by the parties
hereto.
(f) Duration. Notwithstanding the termination of the Employment Term and
--------
of the Employee's employment by the Company, this Agreement shall continue to
bind the parties for so long as any obligations remain under the terms of this
Agreement.
(g) Waiver. No waiver of any breach of this Agreement shall be construed
------
to be a waiver as to succeeding breaches.
(h) Severability. If any provision of this Agreement or application
-------------
thereof to anyone under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
hereunto duly executed this Agreement as of the day and year first written
above.
TELESPECTRUM WORLDWIDE INC.
By:_______________________________________________
J. Xxxxx X'Xxxxx, Chairman, Chief Executive
Officer and President
__________________________________________________
XXXXX XXXXXX
-8-
