Exhibit 10.31
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of March 1, 2003 by and between ICT GROUP,
INC., a Pennsylvania corporation (hereinafter called "Company"), and Xxxx
Xxxxxxxx an individual (hereinafter called "Employee").
WITNESSETH
Employee is currently employed by Company and Company wishes to
continue to employ Employee, and Employee wishes to continue to be in the employ
of Company, on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the facts, mutual promises and
covenants contained herein and intending to be legally bound hereby, Company and
Employee agree as follows:
1. Employment. Company hereby employs Employee as Executive Vice
President Corporate Sales and Employee hereby accepts employment by Company for
the period of time and upon the terms, conditions and restrictions contained in
this Agreement.
2. Duties and Responsibilities.
(a) Employee agrees to assume such duties and responsibilities
normally associated with the position indicated above, and as may be assigned to
Employee by the Chief Executive Officer or President of Company from time to
time. Employee shall perform any other duties reasonably required by Company
and, if requested by Company, shall serve as an officer or director of Company
without additional compensation.
(b) Throughout the term of this Agreement, Employee shall devote
Employee's entire working time, energy, skill and best efforts to the
performance of Employee's duties hereunder in a manner which will faithfully and
diligently further the business and interest of Company. During the term of this
Agreement, Employee may not, directly or indirectly, do any work for any other
company.
3. Term. This Agreement shall be for a term of one (1) year,
commencing on March 1, 2003, and ending on February 24, 2004, unless sooner
terminated as hereinafter provided. Unless either party elects to terminate this
Agreement at the end of the original or any renewal term by giving the other
party written notice of such election
Page 1 of 9
at least ninety (90) days before the expiration of the then current term, this
Agreement shall be deemed to have been renewed for an additional term of one (1)
year commencing on the day after the expiration of the current term, unless
sooner terminated as hereinafter provided.
4. Compensation.
(a) For all of the service rendered by Employee to Company,
Employee shall receive a weekly salary in the gross amount of $4134.61 less
taxes and other deductions required by law, payable in reasonable periodic
installments in accordance with Company's regular payroll practices in effect
from time to time. The Employee's salary shall be reviewed by the Company
annually.
(b) In addition to Employee's base salary, Company may pay Employee
from time to time such bonuses, commissions or other additional compensation as
Company may determine in its sole discretion.
(c) Throughout the term of this Agreement, Employee shall be
eligible to participate in Company's insurance and other benefit plans and
programs subject to their terms, conditions and restrictions. Nothing herein
shall preclude Company from modifying or terminating any insurance or other
benefit plan or program.
(d) Employee shall accrue vacation pay at a rate of 1.75 days per
full-month of employment.
(e) Employee will not receive any remuneration or any other benefit
from any client or any other company or individual in connection with any
transaction in which Company is involved, directly or indirectly. Nor will
Employee assign or give any part of the compensation which he receives from
Company to any other employee, agent or representative of Company, to any client
or any of its employees, agents or representatives, or to any other person or
entity involved, directly or indirectly, with Company.
5. Expenses. Company will reimburse Employee for all reasonable
expenses incurred by Employee in connection with the performance of Employee's
duties hereunder upon receipt of vouchers therefor satisfactory to Company and
in accordance with Company's regular reimbursement procedures and practices in
effect from time to time.
6. Post-Termination Payments.
(a) If Employee is terminated by Company pursuant to Paragraph 10
hereof, Company shall pay to Employee a monthly severance payment in an amount
equal to Employee's monthly salary at the time of termination, less taxes and
other deductions required by law, for eighteen (18) months following such
termination (the
Page 2 of 9
"Severance Period") plus Employee shall receive during the Severance Period his
average quarterly incentive bonus (excluding any amounts attributable to an
annual incentive bonus) for the twelve-month period preceding the termination of
Employee's employment, provided that Employee executes at the time of Employee's
termination of employment a General Release satisfactory to the Company of any
and all claims which Employee may have arising out of or relating to Employee's
employment with and/or termination of employment with the Company. Any pay which
Employee receives in lieu of notice pursuant to Paragraph 10 below shall offset
the Company's obligation, if any, under this Paragraph 6(b). If Employee is
terminated for an Inability pursuant to Paragraph 7 hereof and such Inability
constitutes a disability, Company shall pay to Employee, during the Severance
Period, the difference between Employee's base salary and any disability
payments he receives during such period under the Company's short and long-term
disability plans, as applicable. In addition, if Employee is terminated for any
reason other than for Cause under Paragraph 9 hereof or for an Inability under
Paragraph 7 hereof which is other than a disability, the Company shall maintain
Employee in its group health plan on the same basis as if Employee had remained
employed by the Company during the Severance Period, for the duration of the
Severance Period or until Employee becomes covered under another group health
plan, whichever occurs first.
(b) Employee shall make reasonable efforts to obtain replacement
income (through employment and other sources) during the period in which
Employee receives post-termination payments from Company.
(c) Company's obligation to make post-termination payments pursuant
to Paragraph 6(a) shall be offset by any compensation earned by Employee, as an
employee, consultant, independent contractor or otherwise, during the period in
which Employee receives such post-termination payments.
(d) Company's obligations under Paragraph 6(a) shall cease in the
event Employee fails to make reasonable efforts to obtain replacement income or
in the event Employee breaches any of the restrictions or obligations set forth
in Paragraphs 12 and 13 of this Agreement.
7. Inability. If Employee is unable to perform the essential functions
of Employee's job, with or without reasonable accommodations, for whatever
reason, for a period of thirteen (13) consecutive weeks or for a cumulative
period of nineteen (19) weeks during any twelve-month period, Company shall have
the right to terminate Employee's employment, in which event Company shall have
no further obligations or liabilities hereunder after the date of such
termination except as otherwise provided in
Page 3 of 9
Paragraph 6(a) hereof. The termination of Employee's employment with Company
pursuant to this Paragraph shall not release Employee from Employee's
obligations and restrictions under Paragraphs 12 and 13 of this Agreement.
8. Death. If Employee dies, Company shall have no further obligations
or liabilities to Employee's estate or legal representative or otherwise after
the date of his death.
9. Discharge for Cause. Company may discharge Employee at any time for
"Cause", which shall include, but not be limited to: willful misconduct, fraud,
misappropriation, malfeasance, misfeasance, nonfeasance, embezzlement, gross
negligence, self-dealing, dishonesty, misrepresentation, conviction of a crime
of moral turpitude, or material violation by Employee of any Company policy or
provision of this Agreement. In the event Company terminates Employee's
employment for Cause, Company shall have no further obligations or liabilities
to Employee after the date of such discharge. The termination of Employee's
employment with Company pursuant to this Paragraph shall not release Employee
from Employee's obligations and restrictions under Paragraphs 12 and 13 of this
Agreement.
10. Discharge Not for Cause. Notwithstanding any other provision of
this Agreement, Company may discharge Employee at any time without cause by
providing Employee with 30 days written notice, which notice Company may waive,
in whole or in part, in its sole discretion, by paying Employee for such 30
days. Upon termination of Employee pursuant to this Paragraph, Company shall be
obligated to provide Employee with post-termination payments in accordance with
Paragraph 6, but shall have no further obligations or liabilities to Employee
after the date of his termination. The termination of Employee's employment with
Company pursuant to this paragraph shall not release Employee from Employee's
obligations and restrictions under Paragraphs 12 and 13 of this Agreement.
11. Termination by Employee.
(a) Employee may terminate Employee's employment under this
Agreement at any time by providing Company with 30 days written notice, which
notice Company may waive, in whole or in part, in its sole discretion, by paying
Employee for such 30 days, Company shall have no further obligations or
liabilities to Employee after the date of his termination.
(b) The termination of Employee's employment with Company pursuant
to this Paragraph 11 shall not release Employee from Employee's obligations and
restrictions under Paragraphs 12 and 13 of this Agreement.
Page 4 of 9
12. Company Property.
(a) All advertising, sales, manufacturers' and other materials or
articles or information, including without limitation data processing reports,
client sales analyses, invoices, price lists or information, samples or any
other materials or data of any kind furnished to Employee by Company or
developed by Employee on behalf of Company or at Company's direction or for
Company's use or otherwise in connection with Employee's employment hereunder,
are and shall remain the sole and confidential property of Company.
(b) Immediately upon termination of Employee's employment, whether
by Employee or Company, whether during the term of this Agreement, upon its
expiration or subsequent to its expiration, Employee shall deliver to Company,
all Company property (for example, keys and credit cards) and all documents,
books, records, lists and other documents relating to Company's business,
regardless of where or by whom said writings were kept or prepared, retaining no
copies.
(c) In the event Employee receives notice from Company that
Employee's employment is or will be terminated or Employee provides Company with
notice of Employee's intent to resign, within five (5) days of receiving or
providing such notice, and thereafter as may be requested by Company, Employee
shall provide Company with a list of all clients and potential clients with whom
Employee is working and/or negotiating and a summary of the status of each
matter with which Employee is involved, directly or indirectly.
13. Restrictive Covenants, Trade Secrets, Etc.
(a) For a period of eighteen (18) months after the termination of
Employee's employment with Company, for any reason whatsoever, whether during
the term of this Agreement, upon its expiration or subsequent to its expiration,
whether by Employee or Company, Employee shall not for Employee's own benefit or
for the benefit of any third party, directly or indirectly, in any capacity,
participate in any of the following activities: (i) hire or do any business with
any employee of Company or otherwise induce or attempt to influence any employee
of Company to terminate his or her employment with Company; (ii) divert,
solicit, or do any business with any current, former (within two (2) years of
the date of termination), or potential (engaged in discussion with Company as of
the date of termination) client of Company where any such actions are in
competition with the Company's business; or (iii) cause or attempt to cause any
current, former, or potential client to refrain from doing business with
Company. In light of the fact that the clients of Company will be engaged in
operations nationwide and Company will be contacting potential customers for its
clients throughout
Page 5 of 9
the entire United States, the restrictions set forth in this Paragraph 13(a)
shall apply throughout the entire United States.
(b) During the term of this Agreement and at all times thereafter,
Employee shall not use for Employee's personal benefit, or disclose, communicate
or divulge to, or use for the direct or indirect benefit of any person, firm,
association or company other than Company, any material referred to in Paragraph
12 above or any information regarding the business methods, business policies,
procedures, techniques, research or development projects or results, trade
secrets, or other knowledge or processes of or developed by Company or any names
and addresses of clients or customers or any data on or relating to past,
present or prospective clients or customers or any other confidential
information relating to or dealing with the business operations or activities of
Company, made known to Employee or learned or acquired by Employee while in the
employ of Company.
(c) Any and all writing, inventions, improvements, processes,
procedures and/or techniques which Employee may make, conceive, discover or
develop, either solely or jointly with any other person or persons, at any time
during the term of this Agreement, whether during working hours or at any other
time and whether at the request or upon the suggestion of Company or otherwise,
which relate to or are useful in connection with any business now or hereafter
carried on or contemplated by Company, including developments or expansions of
its present fields of operations, shall be the sole and exclusive property of
Company. Employee shall make full disclosure to Company of all such writings,
inventions, improvements, processes, procedures and techniques, and shall do
everything necessary or desirable to vest the absolute title thereto in Company.
Employee shall write and prepare all specifications and procedures regarding
such inventions, improvements, processes, procedures and techniques and other
aid and assist Company so that Company can prepare and present applications for
copyright or Letters Patent therefor and can secure such copyright or Letters
Patent wherever possible, as well as reissues, renewals, and extensions thereof,
and can obtain the record title to such copyright or patents so that Company
shall be the sole and absolute owner thereof in all countries in which it may
desire to have copyright or patent protection. Employee shall not be entitled to
any additional or special compensation or reimbursement regarding any and all
such writings, inventions, improvements, processes, procedures and techniques,
except that Company shall reimburse Employee for any expenses which Employee may
incur in vesting absolute title thereto in Company.
Page 6 of 9
(d) Employee acknowledges that the restrictions contained in the
foregoing subparagraphs (a), (b), and (c), in view of the nature of the business
in which Company is engaged, and in view of the nature and geographic scope of
the duties of Employee, are reasonable and necessary in order to protect the
legitimate interests of Company, and that any violation thereof would result in
irreparable injuries to Company, and Employee therefore acknowledges that, in
the event of his violation of any of these restrictions, Company shall be
entitled to obtain from any court of competent jurisdiction preliminary and
permanent injunctive relief as well as damages and an equitable accounting of
all earnings, profits and other benefits arising from such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which Company may be entitled.
(e) Employee agrees that if any or any portion of the foregoing
covenants or the application thereof, is construed to be invalid or
unenforceable, the remainder of such covenant or covenants shall not be affected
and the remaining covenant or covenants shall then be given full force and
effect without regard to the invalid or unenforceable portion(s). If the
covenant is held to be unenforceable because of the area covered, the duration
thereof or the scope thereof, Employee agrees that the court making such
determination shall have the power to reduce the area and/or the duration and/or
scope thereof, and the covenant shall then be enforceable in its reduced form.
(f) If Employee violates any of the restrictions contained in the
foregoing subparagraph (a), the restrictive period shall not run in favor of
Employee from the time of the commencement of any violation until such time as
the violation shall be cured by Employee to the satisfaction of Company.
14. Prior Agreements. Employee represents to Company (a) that there are
no restrictions, agreements or understandings whatsoever to which Employee is a
party which would prevent or make unlawful his execution of this Agreement or
Employee's employment hereunder; (b) there are no agreements, restrictions or
understandings whatsoever to which Employee is a party which place any
limitations as to the companies or individuals with whom Employee may do
business; (c) that Employee's execution of this Agreement and Employee's
employment hereunder shall not constitute a breach of any contract, agreement or
understanding, oral or written, to which Employee is a party and by which
Employee is bound; and (d) that Employee is free and able to execute this
Agreement and to enter into employment by Company.
15. Miscellaneous.
(a) Waiver. The waiver by Company of a breach of any provision of
this Agreement by Employee shall not operate or be construed as a waiver of any
Page 7 of 9
subsequent breach by Employee. No waiver shall be valid unless in writing and
signed by Company's Chief Executive Officer.
(b) Controlling Law. This Agreement and all questions relating to
validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
and without the aid of any canon, custom or rule of law requiring construction
against the draftsman.
(c) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received only when
delivered (personally, by courier service such as Federal Express, or by other
messenger) or when deposited in the United States mails, registered or certified
mail, postage prepaid, return receipt requested, addressed in the case of
Company, to its Chief Executive Officer at its principal place of business, and
in case of Employee, to Employee's home address,
(d) Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of Company and its successors and assigns and
shall be binding upon Employee, Employee's heirs and legal representatives.
(e) Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument.
(f) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(g) Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written
including without limitation any prior written employment agreement(s) between
Employee and Company. The express terms hereof control and supersede any course
of performance an/or usage of the trade inconsistent with any of the terms
hereof. This Agreement may not be modified or amended other than by an agreement
in writing and signed by the Company's Chief Executive Officer and Employee.
Page 8 of 9
(h) Paragraph Headings. The paragraph headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
(i) Survival. The covenants contained in Paragraphs 12 and 13 shall
survive the expiration of this Agreement and the termination of Employee's
employment.
(j) Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday on which federal banks are or may elect to be
closed, then the final day shall be deemed to be the next day which is not a
Saturday, Sunday or such holiday.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement in Newtown, Pennsylvania as of the date first above written.
ICT GROUP, INC. EMPLOYEE
By:_____________________________ ________________________
Xxxx X. Xxxxxxx
Page 9 of 9
