EXHIBIT 10.15
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into effective the 9th day of January, 2004,
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 President 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 9th day of January, 2004, 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 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.
(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
(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. The benefit plans 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 benefit plans include the 401K Plan or
the 1996 Stock Incentive Plan.
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.
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
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.
(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: ___________________________________
Its: ___________________________________
________________________________________
Xxxxxxx X. Xxxxxx, Employee
WEST CORPORATION
MEMORANDUM
TO: XXXX XXXXXX
FROM: XXXXXX XXXXXX
DATE: JANUARY 5, 2004
RE: 2004 COMPENSATION PLAN - EXHIBIT A
The compensation plan for 2004 while you are employed as President of West
Telemarketing Corporation Outbound ("WTCO"), including Dakotah Direct, LLC is
being revised as indicated below:
1. Your base salary will be $250,000.00. 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.
2. You are eligible to receive up to a $100,000 annual
performance bonus for meeting your plan objective in pre-tax,
pre-corporate allocation Net Income. The percent of plan
achievement will apply to this bonus calculation, but will not
exceed a total of $100,000 for the year. Up to $18,750 of this
bonus will be available to be paid quarterly and trued up
annually.
3. You are also eligible to receive an
additional bonus for pre-tax, pre-corporate
allocation income in excess of your plan
objectives. The bonus will be calculated by
multiplying the excess plan pre-tax,
pre-corporate allocation Net Income times
.02. This bonus will be calculated at the
end of 2004 plan year and will be paid no
later than February 28, 2005.
6. In addition, if West Corporation achieves its 2004 Net Income range
provided in December 2003, you will be eligible to receive an
additional one-time bonus of $50,000. This bonus is not to be combined
or netted together with any other bonus set forth in this agreement.
5. You will be paid the amount due for any quarterly bonuses within thirty
(30) days after the quarter ends, except for the 4th Quarter and annual
true-up amounts which will be paid no later than February 28, 2005.
6. All pre-tax, pre-corporate allocation profit and Net Income objectives
are based upon WTCO 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. 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.
8. At the discretion of executive management, you may also receive an
additional bonus based on your individual performance. This bonus is
not to be combined or netted together with any other bonus set forth in
this agreement.
_____________________________
Employee - Xxxx Xxxxxx
