Exhibit 10.01
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into effective the 4/th/ day of November, 2002,
between West Corporation ("Employer"), a Delaware corporation, and Xxxx 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
Chief Financial Officer 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 4/th/ day of November, 2002, 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
and provide a policy of life insurance if required by the terms of Exhibit B
attached hereto and incorporated herein as if 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.
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.
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(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. Employer shall make such
election within ten (10) business days from the date of notice of
termination.
(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 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
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(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.
(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:
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(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.
(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,
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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
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 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.
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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 CORPORATION,
Employer
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Its: President and Chief Executive Officer
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/s/ Xxxx Xxxxxxx
-------------------------------------------
Xxxx Xxxxxxx, Employee
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[LOGO OF WEST CORPORATION](SM)
To: Xxxx Xxxxxxx
From: Xxx Xxxxxx
Date: September 12, 2002
Re: 2002 Compensation Plan - Exhibit A
The 2002 compensation plan for your employment as Chief Financial Officer for
West Corporation is as follows:
1. Your base salary will be $250,000.00. Should your employment terminate
before the end of the year, you will be compensated for your services
through the date of your actual termination per your Employment Agreement.
In the event of such termination, the provisions of Paragraph 7 of the
Employment Agreement regarding consulting immediately take effect, and
remain in effect for a twenty-four (24) month period of time from the date
of termination pursuant to the Employment Agreement. This will be reviewed
on an annual basis and revised, if necessary in accordance with the
consumer price index.
2. You will receive a guaranteed bonus of $62,500 per quarter for the first
two years of your employment. This will be compared to a quarterly
performance bonus calculated by multiplying the year-to-date growth and
profits for each quarter by a profit growth participation factor. If the
quarterly performance bonus calculation results in an amount greater than
your guaranteed bonus you will be paid the performance bonus for that
quarter. Your rate factors for the quarterly performance bonus plan for
2003 will be provided to you in December of this year. The quarterly
bonuses shall be pro-rated for the period of November 1, 2002 through
December 31, 2002.
Please note that a negative year-to-date profit calculations at the end of
any given quarter will result in "loss carry forward" to be applied to the
next quarterly year-to-date calculation. All bonuses will be paid within
thirty (30) days of the end of the quarter.
3. For the purposes of this Exhibit A, profit shall be defined as pre-tax
profit growth of the Company on a consolidated basis.
4. Upon acceptance of employment as Chief Financial Officer of West
Corporation, you will receive an initial grant of 80,000 shares of
restricted West stock. These
Exhibit A - X. Xxxxxxx
September 12, 2002
Page Two
shares will vest in five equal installments at 20% each year pursuant to
the terms and conditions of a Restricted Stock Agreement.
5. You will participate in the West Employee Stock Option program effective
January, 2003. The Compensation Committee has approved an award of 200,000
shares to be granted over the eight quarters beginning the first quarter of
2003.
6. All pre-tax, pre-corporate allocation profit and net income objectives are
based upon West Corporation operations and will not include profit and
income derived from mergers, acquisitions, joint ventures or other
non-operating income unless specifically and individually included upon
completion of the transaction.
7. 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 and all such benefits will continue to be paid
by Employer. 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. In addition, Employer will pay for disability insurance
through its group plan or supplemental coverage to replace $150,000 of
income annually until termination of this Employment Agreement or the
vesting of all Stock acquired by Employee pursuant to the five Executive
Restricted Stock Agreements of the same date. In the event of disability,
disability payments will continue through at least September of 2007.
8. At the discretion of management, you may receive an additional bonus based
on the Companies' and your individual performance.
9. In the event of any conflict in terms between this Exhibit and any other
document, the more specific terms of this Exhibit shall govern.
/s/ Xxxx Xxxxxxx
-----------------------------
Employee - Xxxx Xxxxxxx
EXHIBIT "B"
TO EMPLOYMENT AGREEMENT OF XXXX XXXXXXX
Within a reasonable time after the execution of the Employment Agreement
and January 1/st/ of each year thereafter until the earlier of the termination
of the Employee's employment under the Employment Agreement (or the fifth
anniversary of the Executive Restricted Stock Agreement (the "Stock Agreement")
in each case, without regard to any consulting services provided by Employee
after his termination and without regard to Section 7(i) of the Employment
Agreement, which Company and Employee have entered into contemporaneously with
the Employment Agreement, the Company shall determine the "Market Price" of all
the "Shares" of the Company's common stock to which the Employee has a right.
"Shares" for purposes of this paragraph shall mean the sum of shares of (a) the
Stock granted and vested pursuant to the terms of the Stock Agreement, and (b)
the common stock that the Employee has a right to or has acquired pursuant to
the Non-Qualified Stock Option Agreement under the Restated West Corporation
1996 Stock Incentive Plan (the "Plan"). "Market Price" for purposes of this
paragraph shall be determined by multiplying the number of Shares, by the
closing price of the Company's common stock on the day before such valuation
date without adjustment for the restrictions contained in the Stock Agreement or
the Plan. If, on any valuation date, the Market Price of Employee's Shares is
less than the "Agreed Value," Company shall, as soon as reasonably possible,
purchase a term life insurance policy insuring the life of Employee which
provides a death benefit equal to the difference between the Market Price of the
Shares and Agreed Value. "Agreed Value" for purposes of this paragraph shall be
Two Million Dollars less the amount of any gross proceeds that Employee has
received from the sale of the Shares. Employee shall have the sole right to
designate the beneficiary or beneficiaries under such policy. Company shall keep
the policy in effect until the Market Price determination contemplated by this
paragraph is made on the next valuation date, at which time the death benefit of
the policy will be adjusted, if necessary, or the policy cancelled in accordance
with this paragraph. The insurance policy shall be purchased from an insurance
company selected by the Company and the Employee shall cooperate in applying for
such policy, including submitting to any medical examine(s) required by the
insurance company, subject to the reasonable approval of Employee. On the fifth
anniversary of the Stock Agreement, any policy, if any, then in effect will be
cancelled. Employee represents and warrants that he is insurable as that term is
commonly understood in the term life insurance industry in Omaha, Nebraska. The
termination of this Agreement pursuant to Section 6(a)(1) shall not affect the
rights of any beneficiary under the insurance policy. In the event of any
conflict in terms between this Exhibit and any other document, the more specific
terms of this Exhibit shall govern.
