EXHIBIT 10.07
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into effective the 1st day of January, 1996,
between West Telemarketing Corporation a Delaware corporation ("Employer") and
XXXXXXX X. 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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CHIEF FINANCIAL OFFICER of Employer. Employer may also direct Employee to
perform such duties for West Interactive Corporation and West Telemarketing
Corporation Outbound 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 January, 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
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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.
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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
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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/ Xxxx X. Xxxxx
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Its: Chief Executive Officer
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Employee
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WEST TELEMARKETING
Memorandum
TO: Xxxx Xxxxx
FROM: Xxxx Xxxxx
DATE: December 9, 1997
RE: 1998 Compensation Plan - Exhibit A
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Xxxx, below is an outline of your Compensation Plan for 1998. Your compensation
plan will be reviewed by December 15th of each year for the following year. If
changes are made for an upcoming year, a new Exhibit A will be created.
(1) Annual Salary - You will be paid an annual salary of $150,000.
(2) Effective 01/01/98, you will be eligible to receive a quarterly
performance bonus based on year-to-date growth of profits over the same
period of the prior year.
This quarterly bonus will be calculated by multiplying the year-to-date
growth in profits each quarter by the corresponding "Profit Growth
Participation" factor from the table below:
Profit Growth Profit Growth Participation
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0 - 19.99% 1.0%
20 - 29.99% 1.25%
30 - Above 1.40%
As an example, if profits for the first quarter of calendar year 1998
increases by 20% compared to the same period of the previous year
representing a $2,000,000 increase in profits, you would earn a bonus of
$25,000 ($2,000,000 x 1.25%).
Please note, a negative year-to-date profit calculation at the end of any
given quarter will result in a "loss carry forward" to be applied to the
next quarterly year-to-date calculation. All quarterly bonuses will be
paid within 30 days after the end of each quarter.
(3) For purpose of this Exhibit A, profits shall be defined as pre-tax profit
growth of the company.
