EXHIBIT 10.17
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into this 7th day of February, 2000, by and
between Webhelp Canada Inc., an Ontario corporation (the "Company), and Xxx
Xxxxxx ("Employee"). The first date of employment under this Agreement will be
February 8, 2000 (the "Commencement Date").
1. EMPLOYMENT RELATIONSHIP.
Employee is hereby employed by the Company and will act also in the capacity of
Chief Financial Officer of the Company's parent, Xxxxxxx.xxx Inc., a Delaware
corporation (the "Parent"), until the termination of his employment pursuant to
Section 3 hereof. Employee will faithfully, fully, and to the best of his
ability, experience and talent perform and render such services and perform such
duties for the Company and the Parent as the President of the Company shall
reasonably direct. Employee will devote his full business time, attention,
knowledge and skill solely to the business of the Company and the Parent and
will not engage in any other business activities for compensation or profit.
2. COMPENSATION (US Dollars)
2.1. As compensation for the performance of his duties, Employee will
receive a base salary at an annual rate of $170,000 payable in
accordance with the Company's normal pay practices for a salaried
employee.
2.2. Employee shall receive an annual guaranteed bonus of $30,000,
payable at a rate of $2,500 per month on the Company's first
normal pay date of each month.
2.3. Employee shall be eligible for an incentive performance bonus for
each calendar year of his employment, with such bonus for 2000,
if any, prorated to reflect the number of days Employee is
employed during such year.
2.4. The Parent will grant to Employee on the Commencement Date
nonqualified options (the "Options") to purchase an aggregate of
400,000 shares of the common stock, par value $0.01 per share
("Common Stock"), of the Parent subject to and under the Parent's
1999 Long Term Incentive Plan (the "Plan"). The Options shall in
all respects be subject to the Plan and shall (i) have an
exercise price per share equal to $4.95 per share,
proportionately adjusted for any stock splits, reverse stock
splits or stock dividends in respect of the Common Stock, (ii)
have a term of ten (10) years from the date of grant; and (iii)
vest and become exercisable over three years in quarterly
installments from the Commencement Date, provided that Employee
is employed by the Company (or its subsidiary or affiliate) on
the applicable vesting date. However, should this Agreement
terminate other than for "Cause" (as defined in paragraph 3.2),
the number of unvested options as at the date of such
termination, shall be reduced by 50% and any remaining options
unvested will continue to vest and be
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exercisable under the existing terms of this Agreement and the
1999 Long Term Incentive Plan.
2.5. Employee will be entitled to participate in all fringe benefit
programs now or hereafter made available to other salaried
employees of the Company. A summary of benefits currently in
effect is attached or has been previously provided to Employee.
Employee shall be entitled to four (4) weeks of paid vacation per
year.
2.6. The Company will reimburse Employee for all travel and business
expenses incurred by him which are reasonable and necessary for
carrying on the business of the Company and the Parent. Expenses
will be reimbursed after presentation by Employee of an itemized
account of such expenses in form and substance satisfactory to
the Company and the Company's determination that such
expenditures were reasonable, ordinary and necessary.
3. TERMINATION OF EMPLOYMENT
3.1. The Company may terminate Employee's employment at any time, with
or without Cause (as defined hereinafter). If Employee is
terminated by the Company without Cause and other than by reason
of Employee's death or disability, Employee shall be entitled to
salary and benefit continuation as provided in Section 3.6.
3.2 For purposes of this Agreement, "Cause" shall mean (i) willful
and continued failure by Employee to perform his duties as Chief
Financial Officer of the Parent; (ii) gross misconduct or neglect
of Employee in carrying out his duties hereunder which is
injurious to the Company, the Parent or any of their respective
subsidiaries (collectively, the "Parent Group"); (iii) a material
breach by Employee of his obligations under Section 4 of this
Agreement which is reasonably believed by the Company to have
caused, or to be likely to cause, material harm to the Parent
Group, or (iv) conviction of a felony. Each of 3.2 (i) and (ii)
shall be deemed to exist provided the Company has provided
written notice to Employee setting forth the perceived
performance deficiencies and the steps needed to remedy those
deficiencies and Employee has failed to take immediate steps to
remedy such deficiencies. If Employee is terminated for Cause, no
further salary, bonus, incentive performance bonus, or other
compensation will be payable under this Agreement except for any
amount of base salary and bonus which has accrued but not been
paid prior to the date of termination.
3.3 Employee may terminate his employment at any time with or without
"Good Reason" as defined in Section 3.4. If Employee terminates
other than for Good Reason, no further salary, bonus, incentive
performance bonus, or other compensation will be payable under
this Agreement except for any amount of base salary and bonus
which has accrued but not been paid prior to the date of
termination.
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3.4 For purposes of this Agreement, termination for "Good Reason" is
defined as (i) assignment to Employee of demonstrably onerous or
significantly demeaning on-going duties inconsistent with his
status as Chief Financial Officer of the Parent; or (ii) a
reduction in Employee's total compensation below the amounts set
forth in Sections 2.1 and 2.2. If Employee resigns for Good
Reason, Employee shall be entitled to receive salary and benefit
continuation as provided in Section 3.6.
3.5 Employee's employment shall be automatically terminated upon the
occurrence of either of the following events: (i) the death of
Employee, and (ii) the disability of Employee, as defined in the
long term disability policy carried by the Company for Employee,
or if no such policy exists, disability which causes Employee to
be unable to satisfactorily perform his job duties for a
cumulative period of three months in any period of six
consecutive months as reasonably determined by the Company in its
discretion. In such cases, no further salary, bonus or other
compensation will be payable under this Agreement except for any
amount of base salary and bonus which has accrued but not been
paid prior to the date of the termination.
3.6 If Employee is terminated by the Company other than for Cause or
if Employee resigns for Good Reason, for the lesser of a period
of twelve (12) months from the date his employment terminates or
until he is gainfully employed (including as a consultant or
independent contractor), Employee will be entitled to receive
continuation of his annual base salary then in effect, together
with continuation of life and health insurance benefits at the
level in effect on the date of termination or resignation;
provided, however, that any benefit payable hereunder shall
terminate the date Employee breaches any covenant under Section 4
hereof. In the event the Company is unable to continue Employee's
participation in any such insurance program after the date of
such termination or resignation, the Company shall provide
substantially equivalent insurance benefits or reimburse Employee
for the cost of acquiring substantially equivalent benefits.
4 COVENANTS BY EMPLOYEE
4.1 Definitions: As used in this Agreement, the following terms shall
have the following meanings:
4.1.1 "Confidential Information" means trade secrets and all
other information disclosed to or known by Employee as a
result of or through Employee's employment by the Company,
including information about the processes, projects,
services or products, including all information related to
research, development, inventions, production, purchasing,
accounting, finances, engineering, marketing, merchandising,
and customers' names and accounts of any member of the
Parent Group but excluding general knowledge in the industry
in which the Parent Group is engaged.
4.1.2 "Inventions" means any discoveries, concepts and ideas,
regardless of patentability, including but not limited to,
processes, methods, computer
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programs and techniques, and improvements thereof concerning or
relating to any activity of any member of the Parent Group that
the Employee may become acquainted with as a result of employment
by Company.
4.2 Employee expressly agrees that, except as required in the
performance of his duties to the Company or the Parent, Employee
will not at any time, directly or indirectly, use, divulge,
disseminate, disclose, lecture upon, publish articles concerning
or communicate or otherwise make available to any person, firm or
entity in any manner whatsoever any Confidential Information
without the prior express written approval from the Company. The
parties hereby stipulate that as between them, all Confidential
Information is important, material and confidential and that the
disclosure of such Confidential Information materially adversely
affects the effective and successful conduct of business by the
Parent Group and its goodwill, and that any breach of the terms
of this paragraph is a material breach of this Agreement.
Employee agrees to sign any secrecy or nondisclosure agreement
required by a customer of the Parent Group as a condition of
doing business with the Parent Group, and to provide the Company
with a signed copy of said agreement. Employee agrees that all
Confidential Information is the exclusive property of members of
the Parent Group and upon termination of his employment Employee
shall return to the Company all documents, records, notebooks and
other repositories containing Confidential Information, including
any and all copies thereof then in Employee's possession whether
prepared by him or others.
4.3 Employee agrees not to assert any rights to, and expressly
assigns to the Company as the Company's exclusive property, all
ideas, innovations, discoveries, improvements, Inventions,
trademarks, computer programs and/or systems and other
developments or improvements conceived by Employee, alone or with
others, during the term of his employment, whether or not during
working hours, that are within the scope of the Parent Group's
business operations or that relate to any work or projects of the
Parent Group. Employee agrees to assist members of the Parent
Group, at the Company's expense, to obtain patents or copyrights
on any protectable ideas and Inventions, to obtain trademarks, to
exploit other developments and to execute all documents necessary
to obtain such patents, copyrights, trademarks, or other
developments in the name of members of the Parent Group.
4.4 Employee agrees that during the term of this Agreement and for a
period of one year after the expiration of this Agreement or
termination of his employment with the Company and any other
members of the Parent Group (without regard to whether such
termination is by him or the Company), without the prior written
consent of the Company, he will not, directly or indirectly,
engage, own, operate, manage, control, participate in the
management or control of, be employed by, act as a consultant
for, provide or facilitate the provision of financing for,
assist, or maintain or continue any interest whatsoever (other
than stock ownership in any publicly owned company not exceeding
five percent (5%) of the outstanding stock of such company) in
(i) any of the Parent Group's customers, served by him
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or by any other principal or employee of any member of the Parent
Group during the term of his employment with the Company, or (ii)
any enterprise in the United States or Canada engaged in a
business that is competitive with the Parent Group. Without
implied limitation, the foregoing covenant shall include hiring
or engaging or attempting to hire or engage for his own account
or for the account of any person, firm or entity any officer or
employee of any member of the Parent Group, encouraging on behalf
of himself or any competitor, any such officer or employee to
terminate his relationship or employment with the any member of
the Parent Group, soliciting for or on behalf of himself or any
competitor any person or entity which was a client of any member
of the Parent Group, and diverting to any person or entity any
client or business opportunity which relates to the business of
the Parent Group.
4.5 Employee expressly agrees that the terms and condition of this
Section 4 (other than Section 4.4) shall remain in full force and
effect during and after termination of this Agreement for a
period of 18 months. The parties hereto agree and declare that
monetary damages will be insufficient to fully compensate the
Company for its losses in the event that Employee breaches the
covenants contained in this Section 4. Therefore, the Company
will be entitled to enjoin Employee from any threatened or actual
violation of any covenant contained herein, and Employee will not
raise as a defense to any action or proceeding for an injunction
the claim that the Company would be adequately compensated by
monetary damages.
5 DISPUTE RESOLUTION
5.1 Except with respect to matters as to which injunctive relief is
being sought, any dispute arising out of or relating to this
Agreement, or the breach, termination or validity hereof shall be
finally settled by binding arbitration conducted expeditiously in
accordance with J.A.M.S./Endispute Comprehensive Arbitration
Rules and Procedures (the "J.A.M.S. Rules"). The arbitration
shall be governed by the United States Arbitration Act, 9 U.S.C.
Section 1-16, and judgement upon the award rendered by the
arbitrators may be entered by any court having jurisdiction
thereof. The place of arbitration shall be New York City, New
York.
5.2 Such proceedings shall be administered by the neutral arbitrator
in accordance with J.A.M.S. Rules as the arbitrator deems
appropriate, however, such proceedings shall be guided by the
following agreed upon procedures:
5.2.1 Mandatory exchange of all relevant documents, to be
accomplished within thirty (30) days of the initiation of
the procedure;
5.2.2 no other discovery;
5.2.3 hearings before the neutral arbitrator which shall consist
of a summary presentation by each side of no more than three
3 hours; such hearings to take place on one or two days at a
maximum; and
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5.2.4 decision to be rendered not more than ten (10) days
following such hearings.
6 MISCELLANEOUS PROVISIONS
6.1 Employee hereby represents and warrants that he is free to make
this Agreement and the making and performance of this Agreement
by him will not violate the legal and/or equitable rights of any
third party.
6.2 This Agreement embodies the entire understanding of the parties
and there are no promises, terms, covenants, conditions or
obligations or other written, expressed or implied agreements
other than those contained herein. No change or modification of
the Agreement will be valid unless the same will be in writing
and signed by both parties hereto.
6.3 The failure of the Company to act or exercise its rights under
this Agreement upon the breach of any of the terms or conditions
hereof by Employee shall not be construed as a waiver of such
breach, nor prevent the Company from hereafter enforcing strict
compliance with any and all of the terms and conditions herein
set forth. If any provision of the Agreement is declared void,
all of the remaining provisions of this Agreement shall
nevertheless remain in full force and effect, and no provisions
shall be deemed dependent upon any other provision.
6.4
6.4.1 The employment by the Company of Employee is being effected
because of Employee's special capabilities and
qualifications and all of his rights, benefits and duties
hereunder are, therefore, not assignable or transferable in
any manner, except to the extent that any benefit hereunder
may be payable to Employee's estate.
6.4.2 The Company may assign this Agreement and the Company's
obligations and duties hereunder shall be binding upon any
successor and shall inure to the benefit of and be
enforceable by any such successor to the Company.
6.5 The validity, construction and performance of this Agreement will
be governed by the laws of the State of New York, without regard
to conflict of law principles.
6.6 Employee certifies that he has read the entire contents of this
Agreement before signing his name hereto, that he was encouraged
and afforded sufficient opportunity by the Company to obtain
legal advice prior to his executing this Agreement and that he
fully understands all of the terms, conditions, and provisions
set forth herein.
6.7 If any provision of this Agreement shall be deemed unenforceable,
prohibited, or invalid under applicable law, such provision shall
be ineffective to the extent of such unenforceability,
prohibition, or invalidity, but no other provision of this
Agreement shall be invalidated thereby, and the remainder of this
Agreement shall remain enforceable and in effect.
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6.8 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
* * *
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the day and year first above written.
WEBHELP CANADA INC. EMPLOYEE
By: /s/ /s/ Xxx Xxxxxx
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