EMPLOYMENT AGREEMENT
as amended
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of March 29, 2000, to be effective as of April 17, 2000, by and among Aegis
Communications Group, Inc., a Delaware corporation (the "Parent"), Advanced
Telemarketing Corporation, a Nevada corporation ("ATC"), IQI, Inc., a New York
corporation ("IQI") (together, ATC and IQI are referred to as the "Company"),
and ▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Employee").
R E C I T A L S:
The Company and the Parent desire to employ Employee under the terms
and conditions of this Agreement. Employee represents that Employee is free
from any other obligation of continuing employment with his former employer.
Employee desires employment by the Company and the Parent under the
terms and conditions of this Agreement and further desires to be granted
access to the Company's and the Parent's proprietary information.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, the parties agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions set forth in
this Agreement, each of the Company and the Parent employ Employee, and
Employee accepts such employment by the Company and the Parent.
2. DUTIES OF EMPLOYEE.
(a) Employee will serve in the capacities of President and
Chief Executive Officer of each of the Company and the Parent, subject in each
case to the reasonable supervision of the Board of Directors of such
corporation. In such capacities, Employee will have all necessary powers to
discharge his responsibilities, subject in each case to the respective Board's
supervision and control. Employee will have all the powers granted by the
Bylaws of each of the Company and the Parent to the President and Chief
Executive Officer of such corporation, and Employee will report to the Board
of Directors of such corporation. In addition, Employee will be elected to the
Board of Directors of each of the Company and the Parent.
(b) Commencing April 17, 2000 (the "Effective Date") and
during the remaining term of this Agreement, Employee will devote his full
business time and effort to the performance of his duties and responsibilities
as President and Chief Executive Officer of the Company and the Parent;
provided, however, Employee may continue his service as a director of TWS,
Inc. and Hometown Communities, LLC and other directorships from time to time
to the extent such service does not materially interfere with the performance
of his duties and responsibilities to the Company and the Parent.
Notwithstanding the foregoing, Employee may spend reasonable amounts of time
on his
personal civic and charitable activities that do not materially interfere with
the performance of his duties and responsibilities to the Company and the
Parent. Employee acknowledges that the Parent's headquarters are currently
located in Irving, Texas and hereby commits that he will perform his duties
and responsibilities by officing in and physically working from these
headquarters on a full-time equivalent basis, except to the extent that
ordinary and necessary business travel obligations require otherwise or to
address family emergencies.
(c) Employee will comply with the written rules and
regulations of the Company and the Parent respecting their businesses and
perform the directives and policies of the Company and the Parent as they may
from time to time be stated to Employee verbally or in writing by the Board of
Directors of each corporation.
(d) Employee will maintain accurate business records as may
from time to time be required by the Company or the Parent. Such records may
be examined by the Company or the Parent, as the case may be, at all
reasonable times after written request is delivered to Employee. Any such
document will be delivered to the Company or the Parent, as the case may be,
promptly upon request.
(e) Employee agrees not to solicit or receive any income or
other compensation from any third party in connection with his employment with
the Company and the Parent. The Employee agrees, upon written request by the
Company or the Parent, to render an accounting of all transactions relating to
his business endeavors during the term of this employment hereunder.
(f) Within ten days of the Effective Date, Employee will
purchase from the Company 160,400 shares of the Company's common stock at a
price per share of $0.9375, for a total cash consideration of $150,375.
3. TERM. The term of this Agreement (the "Term") will commence
effective as of April 17, 2000 (the "Effective Date") and continue until
terminated in accordance with Section 8 of this Agreement.
4. SALARY. Commencing on April 17, 2000, the Parent will pay
Employee an annual base salary during the term of this Agreement for his
services as President and Chief Executive Officer of the Parent of $375,000,
which will be payable in accordance with the Parent's standard payroll
practice, but not less than monthly. Such base salary will not include any
benefits made available to Employee or any contributions or payments made on
his behalf pursuant to any employee benefit plan or program of the Parent,
including any health, disability or life insurance plan or program, 401K
plan, cash bonus plan, stock incentive plan, retirement plan or similar plan
or program of any nature. Employee's performance and base salary shall be
reviewed by the Board of Directors annually (at the regularly scheduled board
meeting occurring nearest in time to each anniversary of the Effective Date)
and, in the discretion of the Board of Directors or the compensation committee
thereof, may be increased, but not decreased without
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Employee Parent & Co.
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Employee's consent, by such amount as the Board of Directors or such committee
shall determine. The Company will have no separate salary obligation to
Employee, but shall be jointly and severally liable with Parent for the prompt
payment of the salary obligations set forth herein.
5. BONUS COMPENSATION.
(a) The Parent will pay Employee a signing bonus of $250,000,
$125,000 of which is payable within ten days of the Effective Date and
$125,000 of which is payable by July 31, 2000. If Employee voluntarily
terminates his employment with the Parent or the Company (other than upon an
Employee Termination Event) or is terminated for Cause (as defined in Section
8 of this Agreement) within one year of the Effective Date, Employee agrees to
repay promptly such signing bonus to the Parent. If Employee voluntarily
terminates his employment with the Parent or the Company (other than upon an
Employee Termination Event) or is terminated for Cause within the second year
following the Effective Date, Employee agrees to repay promptly one-half of
the signing bonus. If Employee terminates his employment as a result of the
Employee Termination Event defined in Section 8(ii)(g) below, then the second
installment of the signing bonus (if it has not already been paid) shall be
due and payable to the Employee within ten (10) days following the effective
date of such termination. Provided, however, in the event Employee resigns
from his employment with the Parent and Company for any reason following a
Change in Control, Employee shall have no obligation to repay or refund to the
Parent any portion of the signing bonus. For purposes of this Agreement, a
"Change in Control" will be deemed to occur in the following events:
(i) The acquisition in one or more transactions by any "Person" (as
the term person is used for purposes of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended (the "1934
Act"), of "Beneficial Ownership" (within the meaning of Rule
13d-3 promulgated under the ▇▇▇▇ ▇▇▇) of a majority of the
combined voting power of the Corporation's then outstanding
voting securities (the "Voting Securities"), PROVIDED, HOWEVER,
that for purposes of this subsection (i), the Voting Securities
acquired directly from the Corporation by any Person shall be
excluded from the determination of such Person's Beneficial
Ownership of Voting Securities (but such Voting Securities
shall be included in the calculation of the total number of
Voting Securities then outstanding), and PROVIDED FURTHER,
HOWEVER, that for purposes of this subsection (i), Person shall
in no event include Questor Partners Fund II, L.P., ▇▇▇▇▇▇
Equity Investors III, L.P., or any of their affiliates; or
(ii) Approval by stockholders of the Corporation of (A) a merger or
consolidation involving the Corporation if the stockholders of
the Corporation immediately before such merger or consolidation
do not own, directly or indirectly immediately following such
merger or consolidation, at least a majority of the combined
voting power of the outstanding voting
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Employee Parent & Co.
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securities of the corporation resulting from suchmerger or
consolidation in substantially the same proportion as their
ownership of the Voting Securities immediately before such
merger or consolidation or (B) a complete liquidation or
dissolution of the Corporation or an agreement for the sale or
other disposition of all or substantially all of the assets of
the Corporation.
(iii) Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur solely because a majority or more of the then
outstanding Voting Securities is acquired by (i) a trustee or
other fiduciary holding securities under one or more employee
benefit plans maintained by the Corporation or any of its
subsidiaries or (ii) any corporation that, immediately prior to
such acquisition, is owned directly or indirectly by the
stockholders of the Corporation in the same proportion as their
ownership of stock in the Corporation immediately prior to such
acquisition;
(iv) Moreover, notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person (the
"Subject Person") acquired Beneficial Ownership of more than
the permitted amount of the outstanding Voting Securities as a
result of the acquisition of Voting Securities by the
Corporation which, by reducing the number of Voting Securities
outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Person, provided that if a
Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of Voting Securities
by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner of
any additional Voting Securities which increases the percentage
of the then outstanding Voting Securities Beneficially Owned by
the Subject Person, then a Change in Control shall occur.
(b) The Parent will also pay Employee annual performance based cash
bonuses in accordance with Exhibit A attached to this Agreement and the bonus
plan adopted by the Board of Directors for each applicable year. As an
example, the Aegis Communications Group, Inc., 2000 Variable Incentive
Compensation ("VIC") Program is attached as part of Exhibit A. The Company
will have no separate bonus obligation to Employee, but shall be jointly and
severally liable with Parent for the prompt payment of the bonus obligations
set forth herein.
6. EMPLOYEE BENEFITS. During the term of this Agreement, the
Parent will provide Employee with all benefits made available from time to
time by the Parent to its employees generally and to Executives who hold
positions similar to that of Employee (including the benefits granted to other
officers of the Parent), such benefits to be in accordance with the Parent's
policies. Specifically, Employee's benefits will include participation in
medical and dental benefit plans or programs (providing coverage for
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Employee Parent & Co.
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Employee's immediate family); disability insurance with premiums paid by the
Company; 401-K plans as soon as Employee is eligible to participate in such
plans; company-paid term life insurance payable to Employee's designated
beneficiary in the amount of $1 million; officer and director liability
insurance; a $600 monthly car allowance; sick leave; and four weeks' paid
vacation. The Company will have no separate obligations to Employee with
respect to employee benefits, but shall be jointly and severally liable with
Parent for the prompt payment of the benefit obligations set forth herein.
7. REIMBURSEMENT OF EXPENSES. The Parent will reimburse Employee,
in accordance with Parent and Company policy, for all expenses actually and
reasonably incurred by him in the business interests of the Parent or the
Company. The Parent will also reimburse Employee for all expenses actually and
reasonably incurred by Employee in relocating his family to the Dallas-Fort
Worth metropolitan area, including reasonable and customary real estate
commissions and closing costs incurred in selling Employee's current principal
place of residence in Atlanta and reasonable and customary closing costs
incurred in buying a principal place of residence in the Dallas-Fort Worth
metropolitan area, exclusive of financing "points". Reimbursement will be made
to Employee upon appropriate documentation of such expenditures in accordance
with the Company's written policies. The Parent will also reimburse Employee
for all expenses actually and reasonably incurred by Employee for temporary
living and commuting costs and expenses for the first 60 (sixty) days
following the Effective Date, and Employee will be responsible for all such
costs and expenses thereafter. Employee agrees to establish a residence in the
Dallas-Fort Worth metropolitan area as soon as practicable, but no later than
60 (sixty) days following the Effective Date, and will maintain such residence
during the term of this Agreement. For purposes of greater clarity, the
parties acknowledge and agree that Employee shall satisfy the foregoing
obligation by securing an apartment or other living arrangements acceptable to
Employee in the Dallas-Fort Worth metropolitan area and that Employee need not
establish a permanent family residence in the area.
8. EARLY TERMINATION. It is the desire and expectation of each
party that the employer-employee relationship will continue as specified
herein and be a pleasant and rewarding experience for the parties hereto. The
Company or the Parent will, however, be entitled to terminate Employee's
employment at any time with or without Cause (as defined in this Section 8).
Likewise, Employee may terminate his employment at any time for any or no
reason. If the Parent or the Company terminate Employee's employment without
Cause or Employee terminates such employment following occurrence of an
Employee Termination Event, however, the Parent will pay Employee twenty-four
months' salary as severance compensation (based on Employee's then current
annual base salary) in accordance with the Parent's standard payroll practice,
but not less than monthly; provided, however, that to the extent Employee is
able to mitigate (provided, Employee shall have no duty to attempt to so
mitigate) the amount of such severance compensation by earning compensation
through other employment during the twenty-four months following such
termination, the Parent's severance payment
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Employee Parent & Co.
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obligation shall be reduced accordingly; provided further, however, that the
Parent will pay Employee at least twelve months' salary as severance
notwithstanding any such mitigation, the "Minimum Severance Amount." The
Company will have no separate obligation to Employee with respect to severance
compensation, but shall be jointly and severally liable with Parent for the
prompt payment of the salary obligations set forth herein.
If Employee dies, is unable to perform his duties and
responsibilities as a result of disability that continues for 120 consecutive
days or more ("Disability"), voluntarily resigns from the Company or the
Parent (other than a termination by Employee following occurrence of an
Employee Termination Event), or is terminated for Cause, the Parent will pay
Employee (or his estate, executor or legal representative, as appropriate) any
salary that has accrued to the date employment ceases, and the Parent's
obligations to pay additional salary or cash compensation or benefits will
terminate as of such date.
(i) "Cause," for the purpose of this Agreement, will mean the
occurrence of any of the following events:
(a) Performance by Employee of any willful misconduct relating to
the activities of the Company or the Parent, or commission by Employee of any
illegal or fraudulent acts or criminal conduct which in the opinion of the
Parent's Board of Directors will have or is reasonably likely to have a
material adverse effect on the profitability, reputation or goodwill of the
Company or Parent;
(b) A conviction of or NOLO CONTENDERE plea by Employee for any
criminal acts involving moral turpitude having or reasonably likely to have a
material adverse effect upon the Company or the Parent, including, without
limitation, upon their profitability, reputation or goodwill;
(c) Willful or grossly negligent failure by Employee to perform his
duties in a manner consistent with the Company's or the Parent's best
interests which he fails to cure within thirty (30) days after receiving
written notice thereof;
(d) Willful refusal by Employee to carry out reasonable
instructions of the Company's or the Parent's Boards of Directors not
inconsistent with the provisions of this Agreement;
(e) Employee's failure to honor his obligations referred to in the
last sentence of Section 2(b) or the last sentence of Section 7;
(f) Violation by Employee of any of Employee's covenants and
agreements contained in Sections 9, 10 or 11 of this Agreement; or
(g) Any other material breach of Employee's obligations hereunder,
which he fails to cure within thirty (30) days after receiving written notice
thereof.
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Employee Parent & Co.
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(ii) "Termination without Cause" shall mean termination by Parent or
the Company for a reason other than "Cause" and "Employee Termination Event"
shall mean termination by Employee, as a consequence of any of the following
events, if such event occurs without Employee's prior consent:
(a) Employee's base salary is reduced or Parent fails to make
available to Employee a performance bonus plan with a target bonus of at least
100% of Employee's base salary based upon full achievement of the goals
established in the plan;
(b) Employee's responsibilities, functions or duties as the Chief
Executive Officer and President of the Corporation are materially reduced;
(c) Employee's title or reporting relationships change;
(d) Employee is forced to transfer his principal place of residence
to or subsequently from the Dallas-Fort Worth area;
(e) Employee is forced to transfer his principal office from the
Dallas-Fort Worth area;
(f) any failure to elect or reelect Employee as a member of the
Board of Directors of Parent and the Company;
(g) (1) the failure of the Parent's shareholders at the May 4, 2000
shareholder meeting to approve the amendment of the Aegis Communications
Group, Inc. 1998 Stock Option Plan ("Plan") to permit the grant of all options
to Employee contemplated by the Nonqualified Stock Option Agreement vesting
upon achieved internal rates of return (the IRR options) executed on even date
herewith under the terms specified therein, or in the event of such failure,
the failure of the Company to provide within forty-five (45) days the
functionally economic equivalent to the grant of such options in a form and
substance mutually agreeable to the parties, or (2) the failure of the Parent
to amend Section 9 of the Plan to permit, under each stock option grant to
Employee, the exercise of options in excess of 299% of the Employee's base
amount as defined in Section 280G(b)(3) of the Internal Revenue Code; or
(h) any other material breach of Parent's or Company's obligations
hereunder, which such party fails to cure within thirty (30) days after
receiving written notice thereof.
9. NON-COMPETITION AGREEMENT. Employee understands that during the
course of his employment by the Company and the Parent, Employee will (i) have
access to and receive the benefit of special training and unique information,
including, but not limited to, research, systems, development, marketing,
management, business development, customer satisfaction methods and
techniques, business process
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Employee Parent & Co.
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improvements and other developments in marketing methods and providing
services to their customers, and (ii) represent the Company and the Parent and
their affiliates and develop contacts and relationships with other persons and
entities on behalf of such entities, including but, not limited to, customers,
potential customers and other employees of such entities. To protect such
entities' interest in this information and in these contacts and
relationships, Employee agrees and covenants that during the term of his
employment by the Company and the Parent, and for a period of two years after
the termination of such employment for any reason, without prior written
approval of the Company and the Parent, Employee will not, in connection with
any business that is engaged in, or is about to be engaged in (as evidenced by
documented business or development plans), by the Company or the Parent, which
includes, but is not limited to, providing to third parties inbound and
outbound telecommunications- or internet-based marketing services and customer
service functions, market research services, and the consulting, design and
implementation of any of these services (the "Business"), directly or
indirectly, either as an individual or as an employee, partner, officer,
director, shareholder, advisor, or consultant or in any other capacity
whatsoever, of any person (other than ownership of less than 5% of the issued
and outstanding voting securities of a publicly held corporations): (a)
recruit, hire, assist others in recruiting or hiring, discuss employment with,
or refer to others for employment any person who is, or within the 12 month
period immediately preceding the date of any such activity was, an employee of
the Company or the Parent or their affiliates; or (b) conduct or assist others
in conducting any business or activity that competes with the Business in the
United States, its territories or possessions.
It is understood and agreed that the scope of the foregoing covenant
is reasonable as to time, area and persons and is necessary to protect the
legitimate business interests of the Company, the Parent and their affiliates.
It is further agreed that such covenant will be regarded as divisible and will
be operative as to time, area and persons to the extent that it may be so
operative, and if any part of such covenant is declared invalid,
unenforceable, or void as to time, area or persons, the validity and
enforceability of the remainder will not be affected.
If Employee violates the restrictive covenants of this Section 9 and
the Company or the Parent brings legal action for injunctive or other relief,
neither the Company nor the Parent will be deprived of the benefit of the full
period of the restrictive covenant, as a result of the time involved in
obtaining the relief. Accordingly, Employee agrees that the restricted period
following the term of employment will have a duration of two years, and the
regularly scheduled expiration date of such covenant will be extended by the
same amount of time that Employee is determined to have violated such covenant.
10. CONFIDENTIALITY. Employee acknowledges that he has learned and
will learn Confidential Information (as defined herein) relating to the
business conducted and to be conducted by the Company, the Parent or their
affiliates. Employee agrees that he will not, except in the normal and proper
course of his duties hereunder, disclose or use or authorize any third party
to disclose or use any such Confidential Information, without
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Employee Parent & Co.
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prior written approval of the Company or the Parent. As used in this Section
10, "Confidential Information" will mean information disclosed to or known to
Employee as a direct or indirect consequence of or through his employment with
the Company or the Parent, about any customer's, supplier's or the Company's
or the Parent's business, methods, business plans, operations, products,
processes, and services, including, but not limited to, information relating
to research, development, inventions, recommendations, programs, systems, and
systems analyses, flow charts, finances, and financial statements, marketing
plans and strategies, merchandising, pricing strategies, merchandise sources,
client sources, system designs, procedure manuals, automated data programs,
financing methods, financial projections, terms and conditions of arrangements
of any business, computer software, terms and conditions of business
arrangements with clients or suppliers, reports, personnel procedures, supply
and services resources, names and addresses of clients, the Company's or the
Parent's contacts, names of professional advisors, and all other information
pertaining to clients and suppliers, including, but not limited to assets,
business interests, personal data and all other information pertaining to the
Company or the Parent, clients or suppliers whatsoever, including all
accompanying documentation therefor. All information disclosed to Employee, or
to which Employee has access during the period of his employment, which is
treated by the Employer as Confidential Information, will be presumed to be
Confidential Information hereunder. Confidential Information will not,
however, include information that (i) is publicly known or becomes publicly
known through no fault of Employee, or (ii) is generally or readily obtainable
by the public, or (iii) constitutes general skills, knowledge and experience
acquired by Employee before and/or during his employment with the Company and
the Parent or (iv) otherwise compelled in order not to violate applicable law
or order of court (provided, however, Employee shall give the Parent or
Company reasonable notice prior to such disclosure in order to give the Parent
or Company an opportunity to object to such order or to assert any applicable
privilege.).
Employee agrees that all documents of any nature pertaining to
activities of the Company, the Parent or their affiliates, or that include any
Confidential Information, in his possession now or at any time during the term
of his employment, including without limitation, memoranda, notebooks, notes,
data sheets, records and computer programs, are and will be the property of
such entity and that all copies thereof will be surrendered to the appropriate
entity upon termination of his employment.
11. INVENTIONS; DEVELOPMENTS. Employee agrees to notify the Company
and the Parent of any discovery, invention, innovation, or improvement which
is related to the Business or to the business of any customer or supplier
(collectively called "Developments") conceived or developed by Employee during
the term of the Employee's employment. Developments will include, without
limitation, developments in computer software, logical systems, algorithms,
and any or all other intellectual properties related to the Business. All
Developments, including but not limited to all written documents pertaining
thereto, will be the exclusive property of the Company or the Parent, as the
case may be, and will be considered Confidential Information subject to the
terms of this Agreement. Employee agrees that when appropriate, and upon
written
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Employee Parent & Co.
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request of the Company or the Parent, as the case may be, the Employee will
acknowledge that Developments are "works for hire" and will file for patents
or copyrights with regard to any or all Developments and will sign
documentation necessary to evidence ownership of Developments in the Company
or the Parent, as the case may be.
12. EXIT INTERVIEW. To insure a clear understanding of this
Agreement, including, but not limited to, the protection of the Company's and
the Parent's business interests, Employee agrees, at no additional expense to
the Company and the Parent, at a mutually acceptable time and place to engage
in an exit interview with the Company and the Parent prior to Employee's
departure from the Company and the Parent.
13. RIGHT OF SETOFF. The Company and the Parent will be entitled,
at their option and not in lieu of any other remedies to which they may be
entitled, to set off any amounts due Employee or any affiliate of Employee
against any amount due and payable by Employee or any affiliate of Employee to
the Company and the Parent ("Set-Offs") pursuant to this Agreement or
otherwise, provided that the Set-Offs are set forth in detail in writing with
supporting evidence to substantiate each Set-Off.
14. MISCELLANEOUS.
(a) Any notice, demand or request required or permitted to
be given or made under this Agreement will be in writing and will be deemed
given or made when delivered in person, when sent by United States registered
or certified mail, or postage prepaid, or when telecopied to a party at its
address or telecopy number specified below:
If to the Parent or the Company:
Aegis Communications Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇ Birch
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
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If to Employee:
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
Suite 3100, Promenade II
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
The parties to this Agreement may change their addresses for notice
in the manner provided above.
(b) All section titles and captions in this Agreement are
for convenience only, will not be deemed part of this Agreement, and in no way
will define, limit, extend or describe the scope or intent of any provisions
hereof.
(c) Whenever the context may require, any pronoun used in
this Agreement will include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns, pronouns and verbs will include the
plural and vice versa.
(d) The parties will execute all documents, provide all
information and take or refrain from taking all actions as may be reasonably
necessary or appropriate to achieve the purposes of this Agreement.
(e) This Agreement will be binding upon and inure to the
benefit of the parties hereto, their representatives and permitted successors
and assigns. Except for the provisions of Sections 9, 10 and 11 of this
Agreement, which are intended to benefit the Company's and the Parent's
affiliates as third party beneficiaries, or as otherwise expressly provided in
this Agreement, nothing in this Agreement, express or implied, is intended to
confer upon any person other than the parties to this Agreement, their
respective representatives and permitted successors and assigns, any rights,
remedies or obligations under or by reason of this Agreement.
(f) This Agreement, together with option agreements and the
indemnity agreement, constitutes the entire agreement among the parties hereto
pertaining to the specific subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
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(g) None of the provisions of this Agreement will be for the
benefit of or enforceable by any creditors of the parties, except as otherwise
expressly provided herein.
(h) No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof will
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
(i) This Agreement may be executed in counterparts, all of
which together will constitute one agreement binding on all the parties
hereto, notwithstanding that all such parties are not signatories to the
original or the same counterpart.
(j) THIS AGREEMENT WILL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE PRINCIPLES
OF CONFLICTS OF LAW. All claims, disputes, and controversies arising out of or
relating to this Agreement or the performance, breach, validity,
interpretation, application or enforcement hereof, including any claims for
equitable relief or claims based on contract, tort, statute, or any alleged
breach, default, or misrepresentation in connection with any of the provisions
hereof, will be resolved by binding arbitration. A party may initiate
arbitration by sending written notice of its intention to arbitrate to the
other party and to the American Arbitration Association ("AAA") office located
in Dallas, Texas (the "Arbitration Notice"). The Arbitration Notice will
contain a description of the dispute and the remedy sought. The arbitration
will be conducted at the offices of the AAA in Dallas, Texas before an
independent and impartial arbitrator who is selected by mutual agreement, or,
in the absence of such agreement, before three independent and impartial
arbitrators, of whom each party will appoint one, with the third being chosen
by the two appointed by the parties. In no event may the demand for
arbitration be made after the date when the institution of a legal or
equitable proceeding based on such claim, dispute, or other matter in question
would be barred by the applicable statute of limitations. The arbitration and
any discovery conducted in connection therewith will be conducted in accordance
with the Commercial Rules of arbitration and procedures established by AAA in
effect at the time of the arbitration, including without limitation the
expedited procedures set forth therein (the "AAA Rules"). The decision of the
arbitrator(s) will be final and binding on all parties and their successors
and permitted assignees. The judgment upon the award rendered by the
arbitrator(s) may be entered by any court having jurisdiction thereof. The
arbitrator(s) will be selected no later than 30 days after the date of the
Arbitration Notice. The arbitration hearing will commence no later than 60
days after the arbitrator(s) is selected. The arbitrator(s) will render a
decision no later than 30 days after the close of the hearing, in accordance
with AAA Rules. The arbitrator's fees and costs will conform to the then
current AAA fee schedule and will be borne equally by the parties.
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Employee Parent & Co.
12
(k) If any provision of this Agreement is declared or found
to be illegal, unenforceable, or void, in whole or in part, then the parties
will be relieved of all obligations arising under such provision, but only to
the extent that it is illegal, unenforceable or void, it being the intent and
agreement of the parties that this Agreement will be deemed amended by
modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objectives.
(l) No supplement, modification or amendment of this
agreement or waiver of any provision of this Agreement will be binding unless
executed in writing by all parties to this Agreement. No waiver of any of the
provisions of this Agreement will be deemed or will constitute a waiver of any
other provision of this Agreement (regardless of whether similar), nor will
any such waiver constitute a continuing wavier unless otherwise expressly
provided.
(m) Employee acknowledges and agrees that the Company and
the Parent would be irreparably harmed by any violation of Employee's
obligations under Sections 9, 10 and 11 hereof and that, in addition to all
other rights or remedies available at law or in equity, the Company and the
Parent will be entitled to apply for injunctive and other equitable relief to
prevent or enjoin any such violation in a court of competent jurisdiction,
without regard to subparagraph (j) above. The provisions of Sections 9, 10 and
11 hereof will survive any termination of this Agreement, in accordance with
their terms.
(n) No party may assign this Agreement or any rights or
benefits thereunder without the written consent of the other parties to this
Agreement. Provided , however, in the event of a Change of Control, Parent
will use its commercially reasonable best efforts to induce the acquiring
entity or successor to assume this Agreement.
EXECUTED as of the date first above written.
AEGIS COMMUNICATION GROUP,INC.
By:
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▇▇▇▇ ▇. ▇▇▇▇,
Chairman of the Board
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Employee Parent & Co.
13
ADVANCED TELEMARKETING CORPORATION
By:
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇,
Chairman of the Board
IQI, INC.
By:
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇,
Chairman of the Board
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
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Employee Parent & Co.
14
EXHIBIT A
In each year of the Employment Agreement, Employee will be entitled
to receive a targeted base cash bonus of 100% of his annualized salary
(pro-rated for any partial year of employment in the year 2000) upon the full
attainment by the Parent, the Company and their consolidated subsidiaries of
the annual bonus plan objectives stipulated by the Board of Directors from
year to year. Such annual cash bonus will be payable within 30 (thirty) days
of the completion of the audit for the applicable year. The Year 2000 Variable
Incentive Compensation (VIC) annual bonus plan is attached hereto. As an
example, Employee's Year 2000 VIC Program is based only on EBITDA. For
example, if Parent obtains 100% of EBITDA, Employee's bonus would equal 100%
of annual salary on a pro rated basis. If Parent obtains 120% of EBITDA goal,
Employee's bonus would equal 150% of annual salary on a pro rated basis.
Conversely, under the 2000 VIC Program, if the Parent does not attain 70% of
its EBITDA goal, no bonus would be due.
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Employee Parent & Co.
15
