EXHIBIT 10.04
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into effective the 1st day of July, 1996,
between West Telemarketing Corporation a Delaware corporation ("Employer") and
XXXX XXXXX ("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, DIRECT RESPONSE SERVICES of Employer. Employer may
also 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 Employees 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
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shall commence effective the 1st day of July, 1996, 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
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working 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
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of 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,
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may 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.
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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
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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
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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
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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
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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 - 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 / Chief Operating Officer
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Employee
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To: Xxxx Xxxxx
From: Xxx Xxxxxx
Date: September 1, 1998
Subject: 1998 Compensation Plan - Exhibit A
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Your Compensation Plan for the remainder of 1998 while you are employed as
President Operator Services Division for West TeleServices Corporation is
outlined below.
1. Your base salary will be adjusted to the annual rate of $190,500. 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. All revenue and profits from the DR Division and the COS Division will be
aggregated and compared to 1997. You will be eligible to receive a quarterly
performance bonus based on Pre Tax Profit growth when compared to the same
period of the prior year. This quarterly bonus will be calculated by
multiplying the year-to-date Pre Tax Profit growth times the year-to-date
incentive factors indicated below minus bonuses paid year-to-date for the
respective calendar year. A negative profit calculation at the end of any given
quarter will result in a loss carry-forward to be applied to the next quarterly
bonus calculation. All bonuses will be paid within 30 days after the end of
each quarter.
Pre Tax Profit Growth Profit Factor
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0 - $11.5 million .013
$11.5 million + .015
3. All Pre Tax Profit in excess of $11.5 million will be applied against the
rate factor of .015. You will also be eligible to receive a one time bonus of
$75,000 if your YTD SG&A as a % of sales is at 29.8 or less at year end. This
amount will be paid not later than 30 days after your year end financial
statements are prepared, but in no event will you be paid later than February
28, 1999.
4. Your Compensation Plan for 1999 will be presented no later than December 1,
1998.
/s/ ML
