EXHIBIT 11.11
EMPLOYMENT AGREEMENT
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This Agreement is made as of this 1st day of January, 2000 between
TeleSpectrum Worldwide Inc., a Delaware corporation (the "Company"), and Xxxx X.
Xxxx (the "Employee").
RECITALS
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WHEREAS, the Company desires to employ the Employee, and the Employee
desires to provide services to the Company, upon the terms and conditions
hereinafter set forth.
WITNESSETH:
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NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. Employment
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(a) During the term of the Employee's employment under this Agreement (the
"Employment Term"), the Employee shall be the President of Inbound Telemarketing
and Customer Care of the Company and shall perform such duties consistent with
such office as described in the Company's Bylaws (a copy of which has been
furnished to the Employee) and as are assigned by the Company's Chief Executive
Officer or his designees and the Company's Board of Directors (the "Board").
(b) Employee represents to the Company that she is not subject or a party
to any employment agreement, non-competition covenant, non-disclosure agreement
or any other agreement, covenant, understanding or restriction of any nature
which would prohibit Employee from executing this Agreement and performing fully
her duties and responsibilities hereunder. All prior arrangements or agreements
between the Company (and any of its predecessors or subsidiaries) and Employee
relating to employment or severance are hereby terminated.
2. Term. The Employment Term shall begin on the date hereof and, unless
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terminated earlier pursuant to the terms of this Agreement, continue until
December 31, 2000; provided that the Employment Term shall automatically renew
for successive one year periods unless a notice of non-renewal is provided by
the Company not less than 30 days prior to the then applicable scheduled
expiration date.
3. Compensation for Employment.
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(a) The basic annual rate of compensation of the Employee for her services
to the Company during the Employment Term shall be $250,000 (such amounts are
referred to herein as the "Salary"), which the Company shall pay to the Employee
in equal proportional installments in accordance with the normal payroll
policies of the Company.
(b) The Employee shall be eligible to receive annual bonuses (such amounts
are referred to herein as the "Bonus") in such amounts as approved by the
Compensation Committee of the Board of Directors and participate in such bonus
programs as are established for executive officers of the Company.
(c) During the Employment Term, the Company shall provide the Employee
with fringe benefits that are substantially equivalent to the fringe benefits
specified on Exhibit "A" (the "Fringe Benefits") at such levels that are
provided to the senior officers of the Company.
(d) All amounts payable by the Company under Sections 3(a) and (b) and the
Fringe Benefits allowed under Section 3(e) shall be subject to proration based
upon the number of days in each such year that the Employee was employed by the
Company hereunder.
4. Termination Without Compensation.
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(a) Total Disability. If the Employee becomes totally disabled (as defined
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below), the Company may terminate the Employment Term by notice to the Employee,
and as of the termination date, the Company shall have no further liability or
obligation to the Employee hereunder except as follows: the Employee shall
receive (i) unpaid Salary, Bonus, if any, and Fringe Benefits that have accrued
through the date of termination; and (ii) whatever benefits that she may be
entitled to receive under any then existing disability benefit plans of the
Company, including any such plans included in the Fringe Benefits. For the
purposes hereof, the Employee shall be deemed to be "totally disabled" if the
Employee is considered totally disabled under any group disability plan
maintained by the Company and in effect at that time, or in the absence of any
such plan, under applicable Social Security regulations. In the event of any
dispute under this Section 4(a), the Employee shall submit to a physical
examination by a licensed physician mutually satisfactory to the Company and the
Employee, the cost of such examination to be paid by the Company, and the
determination of such physician shall be determinative.
(b) Death. If the Employee dies, this Agreement shall terminate on the
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date of death, and thereafter the Company shall not have any further liability
or obligation to the Employee, her executors, administrators, heirs, assigns or
any other person claiming under or through her except that the Employee's estate
shall receive any unpaid Salary, Bonus, if any, and Fringe Benefits that have
accrued through the date of termination.
(c) Cause. The Company may terminate the Employment Term for "cause" by
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giving the Employee 30 days' notice of the termination date, and as of the
termination date, the Company shall not have any further liability or obligation
to the Employee, except that the Employee shall receive any unpaid Salary,
Bonus, if any, and Fringe Benefits that have accrued through the date of
termination. For purposes of this Agreement, "cause" shall mean the Employee's
(i) breach (other than by reason of illness, injury or incapacity) of any of the
material terms or provisions of this Agreement, (ii) the willful and substantial
failure to comply fully with the lawful and reasonable directives of any
Designated Officer or the Board, (iii) substantial and willful misconduct, (iv)
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material neglect of the Company's business, (v) conviction of a felony or other
crime involving moral turpitude, (vi) misappropriation of funds, or (vii)
habitual abuse of alcohol, narcotics or other controlled substances. In the
case of a termination for "cause," the notice of termination shall specify the
basis for the Company's determination of "cause"; provided, however, that in the
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case of conduct described in clauses (i), (ii), (iii) and (iv) above, such
conduct shall not constitute "cause" for the purposes of this paragraph (c)
unless (A) the Chief Executive Officer or the Board shall have given the
Employee notice setting forth with specificity (1) the conduct deemed to
constitute "cause," (2) reasonable action that would remedy the objectionable
conduct, and (3) a reasonable time (not less than 5 days) within which the
Employee may take such remedial action, and (B) the Employee shall not have
taken such specified remedial action within such specified reasonable time.
(d) Resignation. The Employee shall have the right to terminate the
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Employment Term at any time by giving the Company 60 days' notice of the
termination date. Under such circumstances, the Company shall not have any
further liability or obligation to the Employee, except that the Employee shall
receive any unpaid Salary, Bonus, if any, and Fringe Benefits that have accrued
through the date of termination, net of any liabilities that the Employee may
have to the Company.
5. Termination With Compensation. The Company shall have the right to
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terminate the Employment Term without cause, or determined not to have the
Employment Term continue for a successive one year period, at any time by giving
the Employee 30 days' notice of the termination date or its non-renewal
election. In the event of a termination of the Employment Term pursuant to this
Section 5 or election not to continue the Employment Term for a successive one
year period and subject to Section 9 hereof, the Company shall continue to pay
to the Employee the Salary and continue to provide the Fringe Benefits listed in
paragraph (a) of Exhibit A hereto for a period ending one year after the date of
any such termination or election. The Salary to be paid and the Fringe Benefits
to be provided under this Section 5 are referred to herein as the "Termination
Compensation." The Employee shall not be entitled to any Termination
Compensation unless the Employee executes and delivers to the Company after a
notice of termination a release in the form attached as Exhibit "B" hereto by
which the Employee releases the Company from any obligations and liabilities of
any type whatsoever under this Agreement, except for the Company's obligations
with respect to the Termination Compensation, which release shall not affect the
Employee's right to indemnification, if any, for actions taken within the scope
of his employment. The parties hereto acknowledge that the Termination
Compensation to be provided under this Section 5 is to be provided in
consideration for the above-specified release.
6. Agreement Not to Compete.
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(a) The Employee covenants that for the period beginning on the
termination of Employee's employment hereunder and ending on the first
anniversary of the date of such termination of employment hereunder (the
"Restricted Period"), she will not, directly or indirectly, own, manage,
operate, join, control, finance or participate in the ownership, management,
operation, control or financing of, or be connected as a partner, principal,
agent, representative, consultant or
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otherwise with or use or permit his name to be used in connection with, any
business or enterprise engaged directly or indirectly in competition with the
business conducted by the Company at any time during such period within any
portion of the United States in the direct marketing business which includes
inbound and outbound telemarketing, customer retention, interactive voice
response and any other business engaged in by the Company that Employee is
directly involved with at the end of the Employment Term (the "Business"). It
is recognized by the Employee and the Company that the Business is and is
expected to continue to be conducted throughout the United States and that more
narrow geographical limitations of any nature on this non-competition covenant
(and the non-solicitation covenant set forth in Section 6(b)) are therefore not
appropriate. The foregoing restriction shall not be construed to prohibit the
ownership by Employee as a passive investment of not more than five percent of
any class of securities of any corporation which is engaged in any of the
foregoing businesses having a class of securities registered pursuant to the
Securities Exchange Act of 1934.
(b) The Employee further covenants that during the Restricted Period, she
will not, either directly or indirectly, (i) call on or solicit any person who
or which has been a customer of the Company with respect to the activities
prohibited by Section 6(a) or (ii) solicit the employment of any person who is
employed by the Company during such period on a full or part-time basis.
(c) The Employee acknowledges that the restrictions contained in this
Section 6 are reasonable and necessary to protect the legitimate interests of
the Company, and that any violation will result in irreparable injury to the
Company.
(d) The Employee agrees that the Company shall be entitled to preliminary
and permanent injunctive relief, without the necessity of proving actual
damages, as well as an equitable accounting of all earnings, profits and other
benefits arising from any violation of this Section 6, which rights shall be
cumulative and in addition to any other rights or remedies to which the Company
may be entitled. In the event that any of the provisions of this Section 6
should ever be adjudicated to exceed the time, geographic, product or service,
or other limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, product or service, or other limitations permitted by applicable
law.
7. Inventions, Designs and Product Developments. All inventions, innovations,
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designs, ideas and product developments, developed or conceived by the Employee,
solely or jointly with others, whether or not patentable or copyrightable, at
any time during the Employment Term or during her employment by the Company
prior to the commencement of the Employment Term and that relate to the actual
or planned business activities of the Company (collectively, the "Developments")
and all of the Employee's right, title and interest therein, shall be the
exclusive property of the Company. The Employee hereby assigns, transfers and
conveys to the Company all of his right, title and interest in and to any and
all such Developments. The Employee shall disclose fully, as soon as
practicable and in writing, all material and substantial Developments to the
Board. At any time and from time to time, upon the request of the Company, the
Employee shall execute and deliver to the
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Company any and all instruments, documents and papers, give evidence and do any
and all other reasonable acts that, in the opinion of counsel for the Company,
are or may be necessary or desirable to document such transfer or to enable the
Company to file and prosecute applications for and to acquire, maintain and
enforce any and all patents, trademark registrations or copyrights under United
States or foreign law with respect to any such Developments or to obtain any
extension, validation, re-issue, continuance or renewal of any such patent,
trademark or copyright. The Company will be responsible for the preparation of
any such instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse the Employee for all reasonable expenses incurred
by his in compliance with the provisions of this Section 7.
8. Confidential Information.
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(a) The Employee has had and will have possession of or access to
confidential information relating to the business of the Company, including
writings, equipment, processes, drawings, reports, manuals, invention records,
financial information, business plans, customer lists, the identity of or other
facts relating to prospective customers, inventory lists, arrangements with
suppliers and customers, computer programs, or other material embodying trade
secrets, customer or product information or technical or business information of
the Company. All such information, other than any information that is in the
public domain through no act or omission of the Employee or which she is
authorized to disclose, is referred to collectively as the "Company
Information." During and after the Employment Term, the Employee shall not (i)
use or exploit in any manner the Company Information for himself or any person,
partnership, association, corporation or other entity other than the Company,
(ii) remove any Company Information, or any reproduction thereof, from the
possession or control of the Company or (iii) treat Company Information
otherwise than in a confidential manner.
(b) All Company Information developed, created or maintained by the
Employee, alone or with others while employed by the Company, and all Company
Information maintained by the Employee thereafter, shall remain at all times the
exclusive property of the Company. The Employee shall return to the Company all
Company Information, and reproductions thereof, whether prepared by her or
others, that are in his possession immediately upon request and in any event
upon the completion of her employment by the Company.
9. Remedies. The Employee expressly acknowledges that the remedy at law for
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any breach of Sections 6, 7 and 8 will be inadequate and that upon any such
breach or threatened breach, the Company shall be entitled as a matter of right
to injunctive relief in any court of competent jurisdiction, in equity or
otherwise, and to enforce the specific performance of the Employee's obligations
under these provisions without the necessity of proving the actual damage to the
Company or the inadequacy of a legal remedy. In addition, the Company shall be
entitled to cease paying Employee any Termination Compensation if the Employee
engages in any activities restricted by Section 6 hereof regardless of the
enforceability of Section 6 under applicable law.
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10. General.
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(a) Governing Law. This Agreement is made and entered into in the
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Commonwealth of Pennsylvania, and shall in all respects be interpreted, enforced
and governed by and under the laws of the Commonwealth.
(b) Company. For purposes of Sections 6, 7, 8 and 9, the term "Company"
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shall be deemed to include any incorporated or unincorporated entities that are
controlled, directly or indirectly, by the Company through ownership, agreement
or otherwise, and any such entity to which the Company assigns its rights
hereunder.
(c) Binding Effect. All of the terms and provisions of this Agreement
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shall be binding upon and inure to the benefit and be enforceable by the
respective heirs, representatives, successors (including any successor as a
result of a merger or similar reorganization) and assigns of the parties hereto,
except that the duties and responsibilities of the Employee hereunder are of a
personal nature and shall not be assignable in whole or in part by the Employee.
(d) Notices. All notices required to be given under this Agreement shall
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be in writing and shall be deemed to have been given when personally delivered
or when mailed by registered or certified mail, postage prepaid, return receipt
requested, or when sent by Federal Express or other overnight delivery service,
addressed to the Employee at the address then on record with the Company and, if
to the Company, as follows:
000 X. Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Chief Executive Officer
With a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esquire
(e) Entire Agreement; Modification. This Agreement constitutes the entire
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agreement of the parties hereto with respect to the subject matter hereof and
may not be modified or amended in any way except in writing by the parties
hereto.
(f) Duration. Notwithstanding the termination of the Employment Term and
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of the Employee's employment by the Company, this Agreement shall continue to
bind the parties for so long as any obligations remain under the terms of this
Agreement.
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(g) Waiver. No waiver of any breach of this Agreement shall be construed
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to be a waiver as to succeeding breaches.
(h) Severability. If any provision of this Agreement or application
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thereof to anyone under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
hereunto duly executed this Agreement as of the day and year first written
above.
TELESPECTRUM WORLDWIDE INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Chief Executive Officer
and President
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
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EXHIBIT A
FRINGE BENEFITS
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(a) Health insurance and short-term and long-term disability insurance for
the Employee, with the same benefits generally provided to the Company's most
senior executive employees from time to time during the Employment Term.
(b) Eligibility to participate in any 401(k) savings plans maintained by
the Company during the Employment Term consistent with the Plan parameters.
(c) Term life insurance and SERP participation on a basis commensurate
with the Company's other senior officers.
(d) Eligibility to continue to participate in any employee stock option
plan maintained by the Company during the Employment Term.
(e) Reimbursement, in accordance with the Company's policies and upon
receipt of proper accounting of expenses.
(f) Paid holidays in accordance with the Company's policies
(g) Paid vacation of four weeks per year.
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EXHIBIT B
FORM OF RELEASE
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