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EXHIBIT 10.6
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made as of the
5th day of March, 1997 between Xxxx Xxxxx, an individual resident of the State
of Georgia ("Executive"), and Melita International Corporation, a Georgia
corporation with its principal place of business located in Norcross, Georgia
("the Company").
WHEREAS, the Company desires to employ Executive as the Chief Executive
Officer of the Company, and Executive desires to accept said employment from
the Company; and
WHEREAS, the Company and Executive have agreed upon the terms and
conditions of Executive's employment with the Company and the parties desire to
express the terms and conditions in this employment agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties hereby
agree as follows:
1. EMPLOYMENT OF EXECUTIVE. The Company hereby employs Executive, and
Executive hereby accepts such employment from the Company, under the terms of
this Agreement for a period beginning on the Effective Date and terminating on
the date two (2) years thereafter (the "Term").
2. DUTIES. During the Term of this Agreement, Executive shall be employed as
the Board of Directors and the Chief Executive Officer of the Company.
Executive's responsibilities as Chief Executive Officer shall be to plan for
the future of the Company and to involve himself in the management and
operations of the Company in a manner as he and the Board of Directors from
time to time deem appropriate under the circumstances. The Executive shall
devote his full business time, attention, skill, energies and efforts to the
diligent performance of his duties hereunder, except during periods of illness
or periods of vacation and leaves of absence consistent with the Company's
policy. Executive shall establish his own work schedule for the performance of
his duties as described in this Section 2.
3. BASE SALARY. Executive's base salary commencing on the Effective Date and
during the Term of this Agreement shall be $300,000 per year (the "Base
Salary"), which amount may be increased annually at the discretion of the Board
of Directors. The Base Salary shall be paid to Executive by the Company
monthly in arrears or in accordance with the Company's regular payroll practice
as in effect from time to time.
4. ANNUAL BONUS.
Immediately following completion of each fiscal year of the Company and no
later than four (4) months after such date, Executive shall receive, in
addition to the Base Salary, an annual performance bonus in the amount of
$160,000.
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5. BENEFITS AND OTHER COMPENSATION.
Commencing on the Effective Date of this Agreement and during the Term of
this Agreement, the Company shall provide the benefits described below.
(a) Management Stock Incentive Program. The Executive shall participate in
the Company's stock option, stock purchase or other stock incentive plan
generally available to executive officers of the Company and shall be eligible
for the grant of stock options, restricted stock and other awards thereunder.
In addition the Company's Board of Directors shall annually consider the
Executive's performance, and determine if any additional bonus is appropriate.
(b) Vacation. Executive shall have the right to set his own reasonable
vacation schedule as an integral part of Executive's right to set his own work
schedule.
(c) Medical Insurance and Other Benefits. The Company shall provide
Executive with medical insurance coverage for Executive in accordance with the
terms of the Company's medical insurance plan, if any, as it exists from time
to time and shall provide Executive with coverage under all other employee
benefit plans, programs and policies which the Company maintains from time to
time for the benefit of its executive employees.
(d) Expenses. Executive shall be reimbursed monthly by the Company for
the ordinary and necessary business expenses incurred by him in the performance
of his duties for the Company; provided that Executive shall first document
said business expenses in the manner generally required by the Company under
its standard employee business expense reimbursement policies and procedures.
6. TERMINATION; TERM.
(a) The term of this Agreement (the "Term") shall commence on the
Effective Date and end two (2) years thereafter. The term shall be
automatically extended for successive two (2) year periods unless either party
hereto delivers to the other written notice three (3) months prior to the end
of the Term of its desire to terminate this Agreement.
(b) Notwithstanding the terms of Section 6 (a) hereof, This Agreement and
the Executive's employment hereunder may be terminated as follows:
(i) immediately, without any notice by or to either party hereto,
upon the death of the Executive;
(ii) immediately by the Company for the Disability of the Executive
upon delivery by the Company to the Executive of a Notice of Termination;
or
(iii) immediately by the Company for Cause upon delivery by the
Company to the Executive of a Notice of Termination.
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(c) If the Executive's employment with the Company shall be terminated
during the Term (i) by reason of the Executive's death, or (ii) by the Company
for Disability or Cause, the Company shall pay to the Executive (or in the case
of his death, the Executive's estate) within fifteen days after the Termination
Date a lump sum cash payment equal to the Executive's Accrued Compensation.
(d) The pay and benefits provided for in this Section 6 shall be in lieu
of any other severance pay to which the Executive may be entitled under any
Company severance plan, program, practice or arrangement. The Executive's
entitlement to any other compensation or benefits shall be determined in
accordance with the Company's employee benefit plans and other applicable
programs, policies and practices then in effect.
(e) The Base Salary, and benefits paid or provided herein, but no other
additional compensation, shall be paid to Executive or his estate up to the
effective date of termination of this Agreement for whatever reason, including
the death of Executive, and not thereafter.
7. EXECUTIVE WORKS. Executive agrees that Executive will promptly disclose
to the Company all Executive Works (defined below). Executive hereby
irrevocably assigns to the Company all right, title and interest in and to any
and all Executive Works, created by Executive at any time prior to Effective
Date and Executive will execute, without requiring the Company to provide any
further consideration therefor, such confirmatory assignments, instruments and
documents as the Company deems necessary or desirable in order to effect such
assignment. Executive further agrees that all Executive Works created by him
during the course of his employment by the Company are the sole property of the
Company and hereby assigns such Executive Works to the Company, and Executive
will execute, without requiring the Company to provide any further
consideration therefor, such confirmatory assignments, instruments and
documents as the Company deems necessary or desirable in order to effect such
assignment. The term "Executive Works" as used in this Agreement means any and
all works of authorship, inventions, discoveries, improvements, designs,
techniques, and work product, whether or not patentable, and in whatever form,
which are created, made, developed or reduced to practice, or caused to be
created, made, developed or reduced to practice by Executive during the course
of his employment with the Company, including all worldwide copyrights, trade
secrets, patent rights, and all confidential, proprietary and property rights
therein, and that relate in any way to the current or future business of the
Company or that result from any work performed by Executive for the Company.
8. WORKS MADE FOR HIRE. The Company and Executive acknowledge that in the
course of Executive's employment by the Company, Executive may have created, or
may create, for the Company or its customers certain works of authorship. Such
works may consist of manuals, documentation, pamphlets, instructional
materials, videodisks, computer programs, user interfaces, tapes or other
copyrightable material, or portions thereof, and may be created within or
without the Company's facilities and before, during or after normal business
hours. All such works related to or useful in the business of the Company are
specifically intended to be works
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made for hire by Executive and owned by the Company or its customers, as
applicable, and Executive shall cooperate with the Company in the protection of
the Company or its customer's, as applicable, copyrights therein and, to the
extent deemed desirable by the Company or its customers, as applicable, the
registration of such copyrights.
9. PRODUCTS, NOTES, RECORDS AND SOFTWARE. All memoranda, notes, records and
other documents and computer software made or compiled by Executive during the
course of Executive's employment by the Company or made available to him during
the course of his employment by the Company, including, without limitation, all
customer data, billing information, service data, and other technical material,
confidential information and trade secrets of the Company and its affiliates,
shall be the Company's property and Executive shall deliver all such materials
(and all copies thereof) to the Company within three (3) days after any
termination of his employment with the Company.
10. NONDISCLOSURE. Executive acknowledges and agrees that during his
employment by the Company, he has had, or will have, access to trade secrets
and other confidential or proprietary information peculiar to the Company, the
disclosure or use of which would injure the Company. Therefore, Executive
agrees that he will not use, reveal, or divulge any such trade secrets if such
use, revelation, or divulgence would violate the Georgia Trade Secrets Act of
1990, as amended. In addition, Executive agrees that during his employment by
the Company and after any termination thereafter, he will not, directly or
indirectly, use, reveal, or divulge any such confidential information,
proprietary information or trade secrets. However, Executive shall not be
required to keep confidential any trade secrets or confidential or proprietary
information of the Company which is or becomes publicly available, is
independently developed by Executive outside of the scope of his employment
relationship with the Company, or is rightfully obtained from third parties.
11. NONCOMPETITION. During the course of his employment by the Company and
for a period of two (2) years after termination of his employment by the
Company, Executive agrees that he shall not engage in or render services to any
entity engaged in, the predictive dialing computer software business or any
other business in which the Company is engaged during the course of his
employment (the "Business") within the United States of America ("Territory"),
and two (2) years thereafter.
12. NONSOLICITATION.
(a) Customers. During his employment by the Company, Executive shall not,
directly or indirectly without the Company's prior written consent, contact any
customer of the Company, with whom Executive, in the ordinary course of his
employment by the Company, had a material contact ("Customer") for business
purposes unrelated to furthering the business of the Company. For a period of
two (2) years following his employment by the Company, Executive shall not,
directly or indirectly, (i) contact, solicit, divert or take away, any Customer
for purposes of, or with respect to, selling a product or service which
competes with the Business of the Company, or (ii) take any affirmative action
in regard to establishing or continuing a
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relationship with a Customer for purposes of making, or which directly or
indirectly results in, a sale of a product or service which competes with the
Business of the Company.
(b) Employees. During the employment of the Executive and for a period of
two (2) years following any termination of employment of Executive, Executive
shall not, directly or indirectly, recruit or hire, or attempt to recruit or
hire, any other employees of the Company who were employed by the Company
during the employment of the Executive and who are actively employed during the
employment of the Executive or such two (2) year period.
13. REMEDY FOR BREACH. Executive agrees that remedies at law of the Company
for any actual or threatened breach by Executive of any of the covenants
contained in Section 7 through 12 of this Agreement would be inadequate and
that the Company shall be entitled to specific performance by Executive of the
covenants in such paragraphs or injunctive relief against activities in
violation of such paragraphs, or both, by temporary or permanent injunction or
other appropriate judicial remedy, writ or order, in addition to any damages
and legal expenses (including attorney's fees) which the Company may be legally
entitled to recover. Executive acknowledges and agrees that the covenants
contained in Sections 7 through 12 of this Agreement shall be construed as
agreements independent of any other provision of this or any other contract
between the parties hereto, and that the existence of any claim or cause of
action by Executive against the Company, whether predicated upon this or any
other contract, shall not constitute a defense to the enforcement by the
Company of said covenants.
14. SURVIVAL. The provisions of Sections 7 through 13 shall survive
termination of this Agreement.
15. INVALIDITY OF ANY PROVISION. It is the intention of the parties hereto
that Sections 7 through 12 of this Agreement shall be enforced to the fullest
extent permissible under the laws and public policies of each state and
jurisdiction in which such enforcement is sought, but that the unenforceability
(or the modification to conform with such laws or public policies) of any
provision hereof shall not render unenforceable or impair the remainder of this
Agreement which shall be deemed amended to delete or modify, as necessary, the
invalid or unenforceable provisions. The parties further agree to alter the
balance of this Agreement in order to render the same valid and enforceable.
16. APPLICABLE LAW. This Agreement is being executed in the State of Georgia
and shall be construed and enforced in accordance with the internal laws of the
State of Georgia, without giving effect to the conflicts laws of such state.
17. WAIVER OF BREACH. The waiver by the Company of a breach of any provision
of this Agreement by Executive shall not operate or be construed as a waiver
of any subsequent breach by Executive.
18. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and shall inure to the benefit of
the Company, its Successors and Assigns, and the Company shall require any
Successors and Assigns to
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expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession or assignment had taken place.
(b) Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal personal representative.
19. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties. This Agreement may not be changed orally but only by an agreement in
writing signed by the party against whom enforcement of any waiver, changes,
modification, extension, or discharge is sought.
20. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following meanings:
(a) "Act" shall mean the Securities Act of 1933, as amended.
(b) "Accrued Compensation" shall mean an amount, including all amounts
earned or accrued through the Termination Date but not paid as of the
Termination Date including, (i) base salary of the Executive, (ii)
reimbursement for reasonable and necessary expenses incurred by the Executive
on behalf of the Company as of the Termination Date, and (iii) bonuses and
incentive compensation owed to the Executive.
(c) The termination of the Executive's employment shall be for "Cause" if
it is a result of:
(i) any act that the Board of Directors reasonably determines (A)
constitutes, on the part of the Executive, fraud, dishonesty, gross
malfeasance of duty, or conduct grossly inappropriate to the Executive's
office, and (B) is demonstrably likely to lead to material injury to the
Company or resulted or was intended to result in a material benefit to
the Executive at the Company's expense; or
(ii) the conviction (from which no appeal may be or is timely taken)
of the Executive of a felony; provided, however, that in the case of
clause (i) above, such conduct shall not constitute Cause (x) unless (A)
there shall have been delivered to the Executive a written notice setting
forth with specificity the reasons that the Board believes the
Executive's conduct constitutes the criteria set forth in clause (i), (B)
the Executive shall have been provided the opportunity to be heard in
person by the Board (with the assistance of the Executive's counsel if
the Executive so desires), and (C) after such hearing, the termination
for Cause is approved by a resolution adopted in good faith by two-thirds
of the members of the Board (other than the Executive).
(d) "Disability" shall mean a physical or mental infirmity which
materially impairs the Executive's ability to substantially perform any of the
essential functions of his job with the
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Company for a period of 180 consecutive days, as determined by an independent
physician selected with the approval of both the Company and the Executive.
(e) "Effective Date" shall mean the day that the Company closes its
Initial Public Offering.
(f) "Initial Public Offering" shall mean the closing of the first public
offering of the Company's common stock registered under the Act in which the
aggregate proceeds to the Company, net of all underwriting discounts and
commissions and other expenses of issuance and distribution as stated in the
prospectus relating to such offering, are at least twenty-five million dollars
($25,000,000).
(g) "Notice of Termination" shall mean a written notice of termination
from the Company or the Executive which specifies an effective date of
termination, indicates the specific termination provision in this Agreement
relied upon, and sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
(h) "Successors and Assigns" shall mean, for a corporation, a corporation
or other entity acquiring all or substantially all the assets and business of
the Company (including this Agreement), and for any individual as the
Executive, the estate, successors or heirs, and/or the legal representative of
the Executive, whether by operation of law or otherwise.
(i) "Termination Date" shall mean, in the case of the Executive's death,
his date of death, and in all other cases, the date specified in the Notice of
Termination.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
EXECUTIVE: COMPANY:
MELITA INTERNATIONAL CORPORATION
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
By: /s/ J. Xxxx Xxxxx
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J. Xxxx Xxxxx, President and Chief
Operating Officer
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