Exhibit No. 10.19
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into effective the 30th day of July, 2001,
between West Direct, Inc. ("Employer"), a Delaware corporation, and Xxxx X.
Xxxxxxx ("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
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President and CEO 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
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commence effective the 30th day of July, 2001, and shall continue for a period
of one year 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 one year.
3. Compensation. Employer shall pay Employee as set forth in Exhibit A
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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
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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
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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.
6. Term and Termination. The termination of this Agreement shall be
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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
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death of Employee.
(2) For Cause. Employer, upon written notice to Employee, may
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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
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terminate the employment of Employee at any time without cause.
(4) Resignation. Employee, upon written notice to Employer, may
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resign from the employment of Employer at any time.
(b) Accrued Compensation on Termination. In the event of termination
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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.
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(a) In the event of termination of employment pursuant to Paragraph
6(a)(3) or 6(a)(4) above, 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 up to twelve (12) months from the date of termination and
that Employee will serve as a consultant to Employer if Employer so elects.
Employer shall make such election within ten (10) business days from the
date of notice of termination.
(b) 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:
(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.
(c) 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.
(d) 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(e) hereafter.
(e) 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.
(f) Notwithstanding any provisions in this Agreement to the contrary,
the provisions of Paragraph 7 shall survive the termination of this
Agreement.
(g) Employer shall reimburse Employee for all reasonable expenses
incurred by Employee in furtherance of his consulting duties pursuant to
this Agreement provided the expenses are pre-approved by Employer.
(h) 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,
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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
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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.
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.
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(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
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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
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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 by Employer pursuant
to the consulting provision in Paragraph 7 hereof.
13. Governing Law. This Agreement shall be governed by the laws of the
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State of Nebraska.
14. Entire Agreement. This Agreement constitutes the entire agreement
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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
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and sent by registered mail, return receipt requested, at the following address:
President and CEO
West Corporation
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
16. Miscellaneous. Employee acknowledges that:
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(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 DIRECT, INC.,
Employer
By: /s/ Xxx Xxxxxx
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Its: President & CEO
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/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, Employee
[GRAPHIC]
To: Xxxx X. Xxxxxxx
From: Xxxxxx X. Xxxxxx
Date: June 27, 2001
Re: 2001 Compensation Plan - Exhibit A
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The compensation plan for the first 12 months of your employment as President
and CEO of West Direct, Inc., West's new Marketing Services organization, is as
follows below:
1. Your base annual salary will be $250,000. 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. Your base salary will be reviewed on an annual
basis.
2. You will be paid at the annual rate of $450,000 through your first 12
months of employment. This represents your base salary plus an
annualized incentive of $200,000 paid quarterly. This is meant to
compensate you as you learn the new business and familiarize yourself
with the operations of the other West divisions.
3. You will be eligible to receive a grant of 50,000 shares of options
pursuant to West Corporation's 1996 Stock Incentive Plan, subject to
the approval of the West Corporation Board of Directors.
4. You will be paid the amount due for the quarterly bonuses within thirty
(30) days after the end of the quarter, except for the 4th quarter
bonus which will be paid within thirty (30) days after financial
statements for December 2001 are prepared. However, in no event will
such 4th quarter bonus amount be paid later than February 28, 2002.
The benefit plan, as referenced in Section 7(h) of your employment agreement,
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 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 benefit plans include the 401(k) plan or the 1996 Stock Incentive
Plan.
/s/ Xxxx X. Xxxxxxx
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Employee - Xxxx X. Xxxxxxx
