EMPLOYMENT AGREEMENT
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THIS AGREEMENT, made as of June 18, 2001 by and between ICT GROUP,
INC., a Pennsylvania corporation (hereinafter called "Company"), and Xxxxxx
Xxxxxxxxx an individual (hereinafter called "Employee").
WITNESSETH
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Company wishes to employ Employee and Employee wishes to enter into 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 President and Chief
Operating Officer 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 of
the Company from time to time. Employee shall perform any other
duties reasonably required by Company.
(b) Throughout the term of this Agreement, Employee shall devote his
entire working time, energy, skill and best efforts to the
performance of his 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 June 18, 2001 and ending on June 17, 2002 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 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 gross annual salary of $364,000, 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. Employee's base salary
shall be reviewed by Company's Board of Directors annually and
may be increased by the Board of Directors in its sole
discretion. Employee's base salary, however, may be decreased by
the Board of Directors in the event of a salary reduction that
is generally applicable to the other members of the Company's
senior management.
(b) In addition to Employee's base salary, Company will provide all
benefits as described in the offer letter dated May 25, 2001,
which is incorporated herein and made a part hereof. Employee
shall have the right to participate in the quarterly management
incentive plan and the annual executive management incentive
plan on the terms as described in such offer letter and in the
Company documents describing the terms of such plans. Employee
shall also be able to participate in the ICT Group, Inc. 1996
Equity Compensation Plan and the iCT XxxxxxxxxXxxxx.xxx LLC 2000
Equity Compensation Plan, and any other management incentive
plans established by the Company, on terms at least as favorable
when taken as a whole as those accorded to other officers of the
Company, subject to the terms set forth in the offer letter and
this Paragraph.
(c) In addition, Company may pay Employee from time to time such
bonuses or other additional compensation as Company may
determine in its sole discretion.
(d) 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.
(e) Employee shall accrue vacation pay at a rate of 1.75 days per
full-month of employment.
(f) 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 for any reason other than
Inability pursuant to Paragraph 7 hereof or for Cause pursuant
to Paragraph 9 hereof, or if Employee terminates his employment
for Good Reason as defined in Paragraph 11, the Company shall
pay Employee a monthly severance payment in an amount equal to
Employee's monthly salary at the time of termination for a
period of twelve (12) months (the "Severance Period"). 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 his 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 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 his 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, and Company
shall have no further obligations or liabilities to Employee
after the date of his termination.
(b) In addition, Employee may resign at any time for "Good Reason"
by notifying Company in writing of his intention to resign for
Good Reason and by giving Company thirty (30) days to remedy the
situation. If Company has failed to remedy the situation within
such thirty (30) day period, Employee may resign for Good Reason
and the Company shall pay him the post-termination payments in
accordance with Paragraph 6 hereof.
(c) "Good Reason" for resignation by Employee shall mean any one or
more of the following:
(i) the refusal by Company to extend this Agreement under
Paragraph 3 hereof beyond its initial term or any renewal
term on terms taken as a whole at least as favorable to
Employee as those in effect immediately prior thereto,
(ii) a breach by Company of any of its material obligations
under this Agreement if Employee has given Company prior
written notice thereof and a reasonable opportunity to
correct and/or remedy the breach and Company has failed to
do so, and
(iii) Company, without having Cause (as defined in Paragraph 9
hereof) to terminate Employee or without the occurrence of
an Inability under Paragraph 7 hereof, materially
diminishes Employee's duties or responsibilities under
this Agreement or removes him from the positions of
President and/or Chief Operating Officer.
(d) 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.
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. This provision shall not apply to material
or information that is in the public domain or that becomes
generally know other than as a result of actions by Employee.
(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 his
employment is or will be terminated or Employee provides Company
with notice of his 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 he is working
and/or negotiating and a summary of the status of each matter
with which he is involved, directly or indirectly.
13. Restrictive Covenants, Trade Secrets, Etc.
(a) For a period of one (1) year after the termination of his
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 his 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 by Employee are in competition with Company; 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 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 his 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 any business now or hereafter carried
on or which Employee knew, during his employment with Company,
was 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.
(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, 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
his 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 he may ado business;
(c) that his execution of this Agreement and his employment hereunder shall not
constitute a breach of any contract, agreement or understanding, oral or
written, to which he is a party and by which he is bound; and (d) that he 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 subsequent breach by Employee. No waiver shall
be valid unless in writing and signed by Company's President.
(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 President at its principal place of business,
and in case of Employee, to his 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, his 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. 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
President.
(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 Langhorne, Pennsylvania on the date first above written.
ICT GROUP, INC.
By:
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Xxxx X. Xxxxxxx
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Xxxxxx Xxxxxxxxx
