EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into effective the 17th day of March, 1997, between
West Telemarketing Corporation a Delaware corporation ("Employer") and XXXXXXX
XXXXXXXX ("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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EXECUTIVE VICE PRESIDENT - SALES AND MARKETING of Employer. Employer may also
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direct Employee to perform such duties for West Telemarketing Corporation
Outbound and West Interactive Corporation and 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 17th day of March, 1997, 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
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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 the Company's normal business hours to the business and
affairs of the Company 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 death of
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Employee.
(2) For Cause. The 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. The 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 resign
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from the employment of Employer at any time.
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(b) Accrued Compensation on Termination. In the event of termination of the
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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 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:
(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 set forth in
Exhibit A. 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
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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 this Agreement provided the expenses are pre-approved by Employer.
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(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
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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
two (2) years 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
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service with Employer, to leave his 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.
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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 State
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of Nebraska.
14. Entire Agreement. This Agreement constitutes the entire agreement between
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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
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sent by registered mail, return receipt requested, at the following address:
President - West Telemarketing Corporation
0000 Xxxxx Xxxxxx
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.
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(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,
Employer
By:/s/ Xxxxxx X. Xxxxxx
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Its: President
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/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Employee
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WEST TELESERVICES CORPORATION
INTEROFFICE MEMORANDUM
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TO: XXXX XXXXXXXX
FROM: XXX XXXXXX
SUBJECT: 1999 COMPENSATION PLAN - EXHIBIT A
DATE: 03/24/99
________________________________________________________________________________
Your Compensation Plan for 1999 while you are employed as Executive Vice
President - Sales and Marketing for West TeleServices Corporation is outlined
below:
1. Your base salary will be $190,000. 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.
2. You will be eligible to receive a monthly performance bonus based on 1999
revenue, net of Xxxxxxx, Psychic Readers Network, Access Resources and
other affiliated companies revenue, compared to 1998 revenue less Xxxxxxx,
Psychic Readers Network, Access Resources and other affiliated companies
minus bonus paid year-to-date for the respective calendar year. This
monthly bonus will be calculated by multiplying year-to-date qualifying
revenue growth times the incentive factors indicated below. A negative
calculation at the end of any given month will result in a loss carry
forward to be applied to the next monthly bonus calculation. All bonuses
will be paid within 30 days of the end of the month.
1998 REVENUE GROWTH COMPENSATION RATE FACTOR
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0 - $100 Million .002
$100 Million + .004
3. You will be eligible to receive a one-time bonus of $50,000.00 if WTSC
consolidated revenue for 1999 is at least $570 million. Revenue derived
from acquisitions or marketing services related programs will not be
considered when calculating revenue for this bonus. If earned, this bonus
will be paid within 30 days after 12/31/99 financials are prepared, but no
later than 02/26/99.
