Exhibit 10.18
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into effective the 1st day of July, 2000,
between West Telemarketing Corporation Outbound ("Employer"), a Delaware
corporation, and XXXXXXX X. XXXXXX ("Employee").
RECITALS
A. WHEREAS, Employer and Employee have agreed to certain terms and
conditions of employment between the parties; and
B. WHEREAS, the parties desire to enter into this Agreement to memorialize
the terms and conditions of the employment relationship and any prior and
existing employment agreement(s) between the parties.
NOW THEREFORE, the parties agree as follows;
1. Employment. Employer agrees to employ Employee in his capacity as
EXECUTIVE VICE PRESIDENT, DIRECT TELESERVICES of Employer. Employer may also
direct Employee to perform such duties for other entities which now are, or in
the future may be, affiliated with Employer (the "Affiliates"), subject to the
limitation that Employee's total time commitment shall be consistent with that
normally expected of similarly situated executive level employees. Employee
shall serve Employer and the Affiliates faithfully, diligently and to the best
of his ability. Employee agrees during the term of this Agreement to devote his
best efforts, attention, energy and skill to the performance of his employment
and/or consulting duties and to furthering the interest of Employer and the
Affiliates.
2. Term of Employment. Employee's employment under this Agreement shall
commence effective the 1st day of July, 2000, and shall continue for a period of
two years unless terminated or renewed under the provisions of Paragraph 6
below.
(a) Unless terminated pursuant to Paragraph 6(a), the term of
employment shall be extended by one year at the end of each successive
year so that at the beginning of each successive year the term of this
Agreement will be two years.
3. Compensation. Employer shall pay Employee as set forth in Exhibit A
attached hereto and incorporated herein as is fully set forth in this paragraph.
Employee may receive additional discretionary bonuses as determined by the Board
of Directors of Employer in its sole discretion provided nothing contained
herein shall be construed as a commitment by the corporation to declare or pay
any such bonuses.
4. Benefits. In addition to the compensation provided for in Paragraph 3
above, Employer will provide Employee with employment benefits commensurate to
those received by other executive level employees of Employer during the term of
this Agreement.
5. Other Activities. Employee shall devote substantially all of his
working time and efforts during Employer's normal business hours to the business
and affairs of Employer and to the duties and responsibilities assigned to him
pursuant to this Agreement. Employee may devote a reasonable amount of his time
to civic, community or charitable activities. Employee in all events shall be
free to invest his assets in such manner as will not require any substantial
services by Employee in the conduct of the businesses or affairs of the entities
or in the management of the assets in which such investments are made.
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6. Term and Termination. The termination of this Agreement shall be
governed by the following:
(a) The term of this Agreement shall be for the period set out in
Paragraph 2 unless earlier terminated in one of the following ways:
(1) Death. This Agreement shall immediately terminate upon the
death of Employee.
(2) For Cause. Employer, upon written notice to Employee, may
terminate the employment of Employee at any time for "cause." For
purposes of this paragraph, "cause" shall be deemed to exist if, and
only if, the CEO and COO of Employer, in good faith, determine that
Employee has engaged, during the performance of his duties
hereunder, in significant objective acts or omissions constituting
dishonesty, willful misconduct or gross negligence relating to the
business of Employer.
(3) Without Cause. Employer, upon written notice to Employee,
may terminate the employment of Employee at any time without cause.
(4) Resignation. Employee, upon written notice to Employer,
may resign from the employment of Employer at any time.
(b) Accrued Compensation on Termination. In the event of termination
of the Agreement, Employee shall be entitled to receive:
(1) salary earned prior to and including the date of
termination;
(2) any bonus earned as of the end of the month immediately
preceding the date of termination; and
(3) all benefits, if any, which have vested as of the date of
termination.
7. Consulting.
(a) In the event of termination of employment pursuant to Paragraph
6(a)(3) or 6(a)(4) above, Employer and Employee agree that Employee shall,
for a minimum period of twenty-four (24) months from the date of
termination, serve as a consultant to Employer.
(b) In the event of termination pursuant to Paragraph 6(a)(2),
Employer and Employee agree that Employer may, at its sole option, elect
to retain the services of Employee as a consultant for a period of
twenty-four (24) months from the date of termination and that Employee
will serve as a consultant to Employer if Employer so elects.
(c) During any period of consulting, Employee shall be acting as an
independent contractor. As part of the consulting services, Employee
agrees to provide certain services to Employer, including, but not limited
to, the following:
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(1) oral and written information with reference to continuing
programs and new programs which were developed or under development
under the supervision of Employee;
(2) meeting with officers and managers of Employer to discuss
and review programs and to make recommendations;
(3) analysis, opinion and information regarding the
effectiveness and public acceptance of their programs.
(d) During the consulting period, Employee shall continue to
receive, as compensation for his consulting, the annualized salary being
paid at the time of termination. No bonus of any kind will be paid during
any period of consulting.
(e) Employee hereby agrees that during any period of consulting, he
will devote his full attention, energy and skill to the performance of his
duties and to furthering the interest of Employer and the affiliates,
which shall include, and Employee acknowledges, a fiduciary duty and
obligation to Employer. Employee acknowledges that this prohibition
includes, but is not necessarily limited to, a preclusion from any other
employment or consulting by Employee during the consulting period except
pursuant to Paragraph 7(f) hereafter.
(f) During the term of this Agreement, including any period of
consulting, Employee shall not, singly, jointly, or as a member, employer
or agent of any partnership, or as an officer, agent, employee, director,
stockholder or investor of any other corporation or entity, or in any
other capacity, engage in any business endeavors of any kind or nature
whatsoever, other than those of Employer or its Affiliates without the
express written consent of Employer, provided, however, that Employee may
own stock in a publicly traded corporation. Employee agrees that Employer
may in its sole discretion give or withhold its consent and understands
that Employer's consent will not be unreasonably withheld if the following
conditions are met:
(1) Employee's intended employment will not interfere in
Employer's opinion with Employee's duties and obligations as a
consultant, including the fiduciary duty assumed hereunder; and
(2) Employee's intended employment or activity would not, in
the opinion of Employer, place Employee in a situation where
confidential information of Employer or its Affiliates known to
Employee may benefit Employee's new employer; and
(3) Employee's new employment will not, in Employer's opinion,
result, directly or indirectly, in competition with Employer or its
Affiliates, then or in the future.
(g) Notwithstanding any provisions in this Agreement to the
contrary, the provisions of Paragraph 7 shall survive the termination of
this Agreement.
(h) Employer shall reimburse Employee for all reasonable expenses
incurred by Employee in furtherance of his consulting duties pursuant to
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this Agreement provided the expenses are pre-approved by Employer.
(i) Benefits During Consulting Period. Employee and his dependents
shall be entitled to continue their participation in all benefit plans in
effect on the date of Employee's termination from employment during the
period of consulting, under the same terms and conditions and at the same
net cost to Employee as when employed by Employer unless Employee accepts
new employment during the consulting term in accordance with Paragraph 7
above, in which event all benefits will cease, at Employer's option, when
the new employment is accepted by Employee.
8. Confidential Information. In the course of Employee's employment,
Employee will be provided with certain information, technical data and know-how
regarding the business of Employer and its Affiliates and their products, all of
which is confidential (hereinafter referred to as "Confidential Information").
Employee agrees to receive, hold and treat all confidential information received
from Employer and its Affiliates as confidential and secret and agrees to
protect the secrecy of said Confidential Information. Employee agrees that the
Confidential Information will be disclosed only to those persons who are
required to have such knowledge in connection with their work for Employer and
that such Confidential Information will not be disclosed to others without the
prior written consent of the Employer. The provisions hereof shall not be
applicable to: (a) information which at the time of disclosure to Employee is a
matter of public knowledge; or (b) information which, after disclosure to
Employee, becomes public knowledge other than through a breach of this
Agreement. Unless the Confidential Information shall be of the type herein
before set forth, Employee shall not use such Confidential Information for his
own benefit or for a third party's or parties' benefit at any time. Upon
termination of employment, Employee will return all books, records and other
materials provided to or acquired by Employee during the course of employment
which relate in any way to Employer or its business. The obligations imposed
upon Employee by this paragraph shall survive the expiration or termination of
this Agreement.
9. Covenant Not to Compete. Notwithstanding any other provision of this
Agreement to the contrary, Employee covenants and agrees that for the period of
one (1) year following termination of his employment with Employer for any
reason he will not:
(a) directly or indirectly, for himself, or as agent of, or on
behalf of, or in connection with, any person, firm, association or
corporation, engage in any business competing directly for the customers,
prospective customers or accounts of the Employer or any of its Affiliates
with whom Employee had contact or about whom Employee learned during the
course of his employment with Employer and during the one (1) year
immediately preceding the end of his employment.
(b) induce or attempt to induce any person employed by Employer or
any of its Affiliates, in any capacity, at the time of the termination of
Employee's service with Employer, to leave his/her employment, agency
directorship or office with Employer or the Affiliate.
(c) induce or attempt to induce any customer of Employer or any of
its Affiliates to terminate or change in any way its business relationship
with Employer or the Affiliate.
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Employee agrees the knowledge and information gained by him in the
performance of his duties would be valuable to those who are now, or might
become, competitors of the Employer or its Affiliates and that the business of
Employer and its Affiliates by its nature, covers at least the entire United
States of America and Canada. In the event these covenants not to compete are
held, in any respect, to be an unreasonable restriction upon the Employee, the
Court so holding may reduce the territory, or time, to which it pertains or
otherwise reasonably modify the covenant to the extent necessary to render this
covenant enforceable by said Court for the reasonable protection of Employer and
its Affiliates. The obligations imposed upon Employee by this paragraph are
severable from, and shall survive the expiration or termination of, this
Agreement.
10. Developments.
(a) Employee will make full and prompt disclosure to Employer of all
inventions, improvements, discoveries, methods, developments, software and
works of authorship, whether patentable or not, which are created, made,
conceived, reduced to practice by Employee or under his direction or
jointly with others during his employment by Employer, whether or not
during normal working hours or on the premises of Employer which relate to
the business of Employer as conducted from time to time (all of which are
collectively referred to in this Agreement as "Developments").
(b) Employee agrees to assign, and does hereby assign, to Employer
(or any person or entity designated by Employer) all of his right, title
and interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications.
(c) Employee agrees to cooperate fully with Employer, both during
and after his employment with Employer, with respect to the procurement,
maintenance and enforcement of copyrights and patents (both in the United
States and foreign countries) relating to Developments. Employee shall
sign all papers, including, without limitation, copyright applications,
patent applications, declarations, oaths, formal assignments, assignment
or priority rights, and powers of attorney, which Employer may deem
necessary or desirable in order to protect its rights and interest in any
Developments.
11. Injunction and Other Relief. Both parties hereto recognize that the
services to be rendered under this Agreement by Employee are special, unique and
of extraordinary character, and that in the event of the breach of Employee of
the terms and conditions of this Agreement to be performed by him, or in the
event Employee performs services for any person, firm or corporation engaged in
the competing line of business with Employer as provided in Paragraph 9, or if
Employee shall breach the provisions of this Agreement with respect to
Confidential Information or consulting services, then Employer shall be
entitled, if it so elects, in addition to all other remedies available to it
under this Agreement or at law or in equity to affirmative injunctive relief.
12. Severability. In the event that any of the provisions of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such invalidity or unenforceability shall not affect the remainder
of this Agreement and same shall be construed as if such invalid or
unenforceable provisions had never been a part hereof. In the event any court
would invalidate or fail to enforce any provision of Paragraph 7 and or
Paragraph 9 of this Agreement, Employee shall return any sums paid to Employee
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by Employer pursuant to the consulting provision in Paragraph 7 hereof.
13. Governing Law. This Agreement shall be governed by the laws of the
State of Nebraska.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties respecting the employment of Employee by Employer and
supersedes all prior understandings, arrangements and agreements, whether oral
or written, including without limitation, any existing employment agreement, and
may not be amended except by a writing signed by the parties hereto.
15. Notice. Notices to Employer under this Agreement shall be in writing
and sent by registered mail, return receipt requested, at the following address:
President and CEO
West TeleServices Corporation
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
16. Miscellaneous. Employee acknowledges that:
(a) He has consulted with or had an opportunity to consult with an
attorney of Employee's choosing regarding this Agreement.
(b) He will receive substantial and adequate consideration for his
obligations under this Agreement.
(c) He believes the obligations, terms and conditions hereof are
reasonable and necessary for the protectable interests of Employer and are
enforceable.
(d) This Agreement contains restrictions on his post-employment
activities.
IN WITNESS WHEREOF, Employer has, by its appropriate officers, executed
this Agreement and Employee has executed this Agreement as of the day and year
first above written.
WEST TELEMARKETING CORPORATION OUTBOUND,
Employer
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Its: COO
-----------------------------------
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx, Employee
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WEST TELESERVICES CORPORATION
MEMORANDUM
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To: Xxxx Xxxxxx
From: Xxxxxx Xxxxxx
Date: December 6, 2000
Re: 2001 Compensation Plan - Exhibit A
The compensation plan for 2001 while you are employed as Executive Vice-
President of West Telemarketing Corporation Outbound is being revised as
indicated below:
1. Your base salary will be $185,000.00. Should you elect to voluntarily
terminate your employment, you will be compensated for your services
through the date of your actual termination per your Employment Agreement.
This will be reviewed on an annual basis and revised, if necessary in
accordance with the consumer price index.
2. The rate factors used to calculate your pre-tax profit bonus are outlined
on the schedule below. You are eligible to receive a quarterly performance
bonus based on each quarter's pre-tax profit margin. The bonus will be
calculated by multiplying the year-to-date pre-tax profit times the rate
factor from the table below minus bonuses paid year-to-date for the
respective calendar year.
Rate Factor WTCO Pre-Tax Margin
----------- -------------------
N/A 0 - 7.99%
.0047 8.0% - 8.99%
.0086 9% - 9.99%
.01 10% - 10.99%
.011 11%+
3. In addition, if WTCO's pre-tax profit margin is equal to or greater than
12% for 2001, you will receive an additional one-time bonus of $50,000.
You will be paid the amount due for the quarterly bonus within thirty (30)
days after the end of the quarter. The annual bonus earned for WTCO
exceeding its profit target will be paid within thirty (30) days after
financial statements for December 2001 are prepared, but in no event will
be paid later than February 28, 2002.
4. The benefit plans, as referenced in Section 7(i), shall include insurance
plans based upon eligibility pursuant to the plans. If the insurance plans
do not provide for continued participation, the continuation of benefits
shall be pursuant to COBRA. In the event Employee's benefits continue
pursuant to COBRA and Employee accepts new employment during the consulting
term, Employee may continue benefits thereafter to the extent allowed under
COBRA. In no event shall benefits plans include the 401K Plan or the 1996
Stock Incentive Plan.
/s/ Xxxx Xxxxxx
-----------------------------
Employee - Xxxx Xxxxxx
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