RE: WEST ASSET MANAGEMENT / PAY DAY INFORMATION FROM: "The Dark Horse"
!!!!! Do you want to know what kind of checks that " The Big Wigs get" while
we have to eat thier table scraps and clean out thier garbage????????
LISTEN TO THIS!!!!!!
A FORTUNE 1000 COMPANY that Pays thousands of crooks pennys , while they sit back and get fithly stinkin RICH!@!!!!
I took out much of thier garbarge day after day. I covered for the company by simply not reporting them to the FTC, or the FBI.
FACT: Most "Big Wigs" may very well know that thier is company corruption going on
but the fact of the matter is that THEY DONT CARE!!!!
As long as the money keeps coming in it doesn't matter who lied to who, or who threatened or misled a consumer.
Who cares if people divorced over our illegal collection tactics endorsed by our managers. ("PAY YOU BILLS THEN!!" THAT WHAT WE END UP SAYING"
" You can't afford an attorney?" Call the cops!!!!
THE FEDERAL TRADE COMISSION IS USLESS for the most part because they are flooded with complaints.
PEOPLE NEED TO GET TOGETHER AND COLLECT THIER PENNIES AND "SUE" THIER BUTS TILL NO TOMORROW!
They Got The Doe, and I have the undeniable "proof" right here right now!!!!!
Who cares if people lost thier jobs because of us whio need a jobs just as much as most people.
Who cares if some people died of heat attacks, stroke or just plain suicide.
The "FAT CATS" will keep getting fatter:
Check Out the pay checks from the leaders of West Corporation.
The "Only" time you cant ket these "Pigs" out of thier chair is if you actually
file a "LAWSUIT" against them because their shareholders, stockholders, brokers, and investors slowly start to feel the heat especially , if a couple of law suits out thier.
MY AVICE: IF YOUR GOING TO SUE THEM GO ALL THE WAY ESPECIALLY IF YOUR IN THE RIGHT.
G
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
December 31, 2008
(Date of Earliest Event Reported)
West Corporation
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
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000-21771 |
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47-0777362 |
(Commission File Number) |
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(I.R.S. Employer Identification No.) |
11808 Miracle Hills Drive, Omaha, Nebraska 68154
(Address of principal executive offices)
Registrants telephone number, including area code: (402) 963-1200
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Item 5.02 |
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Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On December 31, 2008, West Corporation entered into an employment agreement with each of Thomas B. Barker, Nancee R. Berger, Paul M. Mendlik and Steven M. Stangl, and Intercall, Inc., a wholly-owned subsidiary of West Corporation, entered into an employment agreement with Joseph S. Etzler. Each such employment agreement is referred to herein as an Employment Agreement, and each of Mr. Barker, Ms. Berger, Mr. Mendlik, Mr. Stangl and Mr. Etzler is referred to herein as an Executive. West Corporation and Intercall, Inc. are referred to herein interchangeably as the Company. Except for the compensation information contained in Exhibit A to each Executives previous employment agreement, each Employment Agreement replaces any prior employment agreement between the Company and each Executive. Except as noted below, each Employment Agreement contains substantially the same material terms as the other Employment Agreements.
Compensation
Pursuant to each Employment Agreement, each Executive will continue to receive his or her current base compensation and discretionary bonus compensation as determined by Exhibit A to that Executives previous employment agreement (or such larger amounts as the Companys Board of Directors may determine from time to time). Each Executives current base compensation and the method by which each Executives discretionary bonus compensation for 2008 is calculated are as follows:
Thomas Barker . Mr. Barkers base compensation is $900,000. He is also eligible to receive a performance bonus based on EBITDA growth for West Corporation in 2008. As used herein, EBITDA is defined as earnings before interest, taxes, depreciation and amortization, minority interest and share based compensation. EBITDA for each quarter will be compared to the same quarter in the previous year. Each $1,000,000 increase will result in a $25,000 bonus. 75% of the quarterly bonus earned will be paid within thirty (30) days from the end of the quarter. 100% of the total bonus earned will be paid within thirty (30) days of the final determination of 2008 EBITDA. If EBITDA exceeds $633,000,000 for the year 2008, Mr. Barker will be eligible to receive $31,250 for every $1,000,000 of Adjusted EBITDA above that threshold. At the discretion of management, Mr. Barker may receive an additional bonus based on the Companys and his individual performance.
Nancee Berger . Ms. Bergers base compensation is $600,000. She is also eligible to receive a performance bonus based on EBITDA growth for West Corporation in 2008. EBITDA for each quarter will be compared to the same quarter in the previous year. Each $1,000,000 increase will result in a $14,285 bonus. 75% of the quarterly bonus earned will be paid within thirty (30) days from the end of the quarter. 100% of the total bonus earned will be paid within thirty (30) days of the final determination of 2008 EBITDA. If EBITDA exceeds $633,000,000 for the year 2008, Ms. Berger will be eligible to receive $17,857 for every $1,000,000 of Adjusted EBITDA above that threshold. At the discretion of management, Ms. Berger may receive an additional bonus based on the Companys and her individual performance.
Joseph Etzler . Mr. Etzlers base compensation is $475,000. Mr. Etzler is also eligible to receive a bonus based upon the performance of Intercall, Inc. in 2008 (the Intercall Profitability Bonus) which is determined using the following formula: The target Intercall Profitability Bonus is set at $350,000. Each cumulative quarters net operating income before corporate allocations not including amortization for Intercall, Inc. (Plan Year Intercall NOI) is compared to the cumulative budgeted net operating income before corporate allocations for Intercall, Inc. for the same period (Intercall NOI Budget). The percentage by which the cumulative Plan Year Intercall NOI exceeds or is less than the cumulative Intercall NOI Budget is the Intercall Profit Variance Percentage. Each quarters cumulative revenue for Intercall, Inc. (Plan Year Intercall Revenue) is compared to the cumulative budgeted revenue for Intercall, Inc. for the same period (Intercall Revenue Budget). The percentage by which the cumulative Plan Year Intercall Revenue exceeds or is less than the cumulative Intercall Revenue Budget is the Intercall Revenue Variance Percentage. The sum of one hundred percentage points (100%), plus the product of (i) the average of the Intercall Profit Variance Percentage and the Intercall Revenue Variance Percentage, multiplied by (ii) three (3), is the Intercall Bonus Factor. The product of the Intercall Bonus Factor and the target Intercall Profitability Bonus, less any amounts paid to Mr. Etzler for prior Intercall Profitability Bonuses during the Plan Year, are paid in the month following each quarter end. In no event may the Intercall Profitability Bonus exceed $550,000. Mr. Etzler is also eligible to receive an additional one-time bonus of $100,000 if West Corporation
achieves its 2008 EBITDA objective. All of Mr. Etzlers bonus calculations will be based upon the Companys operations and will not include profit and income derived from mergers, acquisitions, joint ventures, stock buybacks, other non-operating income or loss, or financing changes associated with such events unless specifically and individually approved by West Corporations Compensation Committee.
Paul Mendlik . Mr. Mendliks base compensation is $450,000. He is also eligible to receive a performance bonus based on EBITDA growth for West Corporation in 2008. EBITDA for each quarter will be compared to the same quarter in the previous year. Each $1,000,000 increase will result in a $6,428 bonus. 75% of the quarterly bonus earned will be paid within thirty (30) days from the end of the quarter. 100% of the total bonus earned will be paid within thirty (30) days of the final determination of 2008 EBITDA. If EBITDA exceeds $633,000,000 for the year 2008, Mr. Mendlik will be eligible to receive $8,035 for every $1,000,000 of Adjusted EBITDA above that threshold. At the discretion of management, Mr. Mendlik may receive an additional bonus based on the Companys and his individual performance.
Steven Stangl . Mr. Stangls base compensation is $450,000. Mr. Stangl will also receive a bonus based on Communication Services Net Operating Income before Corporate Allocations and Before Amortization at the rate outlined below.
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Net Operating Income |
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Before Corporate Allocations |
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and Before Amortization |
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$0 - $205,000,000 |
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0.18 |
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Over $205,000,000 |
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2.0 |
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The bonus will be paid quarterly and trued up annually. 75% of the quarterly bonus is paid within thirty (30) days from the end of the quarter. 100% of the total bonus earned will be paid no later than February 28, 2009. Mr. Stangl is also eligible to receive an additional one-time bonus of $100,000 if West Corporation achieves its 2008 EBITDA objective. At the discretion of management, Mr. Stangl may receive an additional bonus based on the Companys and his individual performance.
Each Executive will also be reimbursed for relocation expenses (if applicable) and will receive other employment benefits commensurate with that Executives position in the Company and geographical location.
Except as otherwise indicated above, all compensation objectives are based upon West Corporation operations and do not include results derived from mergers or acquisitions unless specifically and individually approved by West Corporations Compensation Committee.
Term and Termination
The term of each Employment Agreement commenced on January 1, 2009 and continues indefinitely until terminated pursuant to its terms. Each Employment Agreement terminates immediately upon the death of the Executive and may otherwise be terminated voluntarily by either party at any time.
In the event that an Employment Agreement is terminated, the relevant Executive is entitled to severance payments determined by the nature of the termination. If the Company terminates an Employment Agreement for Cause (as defined in each Employment Agreement), the Executive is entitled only to the obligations already accrued under his or her Employment Agreement (any such obligations are referred to herein as Accrued Obligations). If an Executive terminates his or her Employment Agreement without Good Reason (as defined in each Employment Agreement), the Executive is entitled to receive any Accrued Obligations and, if the Executive is providing consulting services (as described below) to the Company, an amount equal to two times that Executives base salary payable in equal installments for the two-year period beginning on the date of the termination. If the Company terminates an Employment Agreement without Cause or if an Executive terminates his or her Employment Agreement for Good Reason, the Executive is entitled to receive any Accrued Obligations, an amount equal to two times that Executives base compensation payable in equal installments for the two-year period beginning on the
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date of the termination and, if the Executive is providing consulting services to the Company, an amount equal to the projected annual bonus payable to that Executive as of the date of the termination payable in equal installments for the two-year period beginning on the date of the termination. In any case where the Companys obligation to make severance payments to an Executive is conditioned on that Executives provision of consulting services to the Company, that obligation terminates immediately in the event that the Executive ceases to provide such consulting services within the two-year period beginning on the date of the termination.
Consulting Services
If the Company terminates an Employment Agreement without Cause or if an Executive terminates his or her Employment Agreement with or without Good Reason, the Company will retain the Executive as a consultant for a period of two years from the date of the termination (the Consulting Period). During the Consulting Period, the Executive will receive compensation from the Company as described above and will remain covered under all medical, dental, vision, flexible spending account and executive assistance plans or programs available to actively employed executives of the Company. The Executive may terminate his or her consulting obligations to the Company at any time during the Consulting Period. In the event that an Executive chooses to engage in Other Employment (as defined in the Employment Agreement), the Consulting Period and the related obligations of the Company and the Executive are immediately terminated.
Restrictive Covenants
Pursuant to each Employment Agreement, each Executive is subject to restrictive covenants related to the protection of confidential information, non-competition, inventions and discoveries, and the diversion of Company employees (except for Mr. Etzler, who is not subject to a restrictive covenant related to the diversion of Company employees). An Executives breach of any of the restrictive covenants contained in an Employment Agreement entitles the Company to injunctive relief and the return of any severance payments (excluding Accrued Obligations) in addition to any other remedies to which the Company may be entitled.
The foregoing description is qualified in its entirety by reference to each of the Employment Agreements and the applicable Exhibits A, which are attached hereto as Exhibits 10.1, 10.2, 10.3, 10.4 and 10.5.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
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Exhibit No. |
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Description of Exhibit |
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10.1 |
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Employment Agreement, between West Corporation and Thomas B. Barker, dated December 31, 2008. |
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10.2 |
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Employment Agreement, between West Corporation and Nancee R. Berger, dated December 31, 2008. |
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10.3 |
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Employment Agreement, between Intercall, Inc. and Joseph S. Etzler, dated December 31, 2008. |
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10.4 |
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Employment Agreement, between West Corporation and Paul M. Mendlik, dated December 31, 2008. |
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10.5 |
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Employment Agreement, between West Corporation and Steven M. Stangl, dated December 31, 2008. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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WEST CORPORATION
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Dated: January 7, 2009 |
By: |
/s/ Paul M. Mendlik |
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Paul M. Mendlik |
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Chief Financial Officer |
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EXHIBIT INDEX
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Exhibit No. |
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Description of Exhibit |
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10.1 |
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Employment Agreement, between West Corporation and Thomas B. Barker, dated December 31, 2008. |
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10.2 |
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Employment Agreement, between West Corporation and Nancee R. Berger, dated December 31, 2008. |
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10.3 |
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Employment Agreement, between Intercall, Inc. and Joseph S. Etzler, dated December 31, 2008. |
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10.4 |
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Employment Agreement, between West Corporation and Paul M. Mendlik, dated December 31, 2008. |
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10.5 |
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Employment Agreement, between West Corporation and Steven M. Stangl, dated December 31, 2008. |
Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (Agreement) is made as of January 1, 2009, by and among West Corporation (Company), a Delaware corporation, and Thomas Barker (Executive) (collectively hereinafter the parties).
WHEREAS, Company wishes to employ Executive as Chief Executive Officer on the terms and conditions set forth in this Agreement; and
WHEREAS, Executive wishes to accept such employment on the terms and conditions set forth in this Agreement;
NOW THEREFORE, the parties agree as follows:
I. Employment Duties and Term.
A. Duties. Company agrees to employ Executive as Chief Executive Officer of Company. Executive shall perform for or on behalf of Company such duties as are customary for such position and such other duties as Company shall assign from time to time, including duties for other entities which now are, or in the future may be, affiliated with Company (the Affiliates). Executive shall perform such duties in accordance with Companys policies and practices, including but not limited to its employment policies and practices, and subject only to such limitations, instructions, directions, and control as the Company may specify from time to time at its discretion. Executive shall serve Company and the Affiliates faithfully, diligently and to the best of his/her ability. Executive shall devote all working time, ability, and attention to the business of Company during the term of this Agreement and shall not, directly or indirectly, render any services to or for the benefit of any other business, corporation, organization, or entity, whether for compensation or otherwise, that appears to create a conflict between the interests of the Company and Executive, without the prior knowledge and written consent of Company.
B. Term. The term of this Agreement (Term) shall commence on January 1, 2009 (Commencement Date) and shall continue until the Agreement is terminated pursuant to an event described in Section III of this Agreement.
II. Compensation.
Company agrees to pay to Executive and Executive agrees to accept the following amounts as compensation in full for Executives performance of his/her duties:
A. Base Compensation. During the Term, Company shall pay to Executive an annual base salary (Base Salary) as set forth in the applicable Exhibit A incorporated herein as if fully set forth in this paragraph.
B. Additional Compensation. Executive shall be eligible to receive discretionary bonuses as determined by the Company in its sole discretion provided nothing contained herein shall be construed as a commitment by the Company to declare or pay any such bonuses.
Payment of any bonus described in this section shall be earned and calculated pursuant to the applicable Exhibit A. Executive shall not earn any bonus described in the applicable Exhibit A during the first ninety (90) days of employment or the first ninety (90) days of each calendar year. Annual bonuses shall be paid not later than 2 1 / 2 months after the end of the fiscal year in which they are earned; provided that the Company may, at its discretion, advance projected annual bonuses at any time. If the Executive is no longer an employee of Company for any reason, upon Executives termination of such employment, Executive will have earned and will be paid the pro-rata portion of the bonus, paid not later than 2 1 / 2 months after the end of the fiscal year in which such bonus is earned, based upon performance of the Company through the date of termination and the weekly performance projections for the remainder of the calendar year as of the second Friday following the date of termination, as applied to the terms and conditions of the applicable Exhibit A, excluding terminations occurring in the first ninety (90) days of employment or the first ninety (90) days of each calendar year (the Earned Bonus).
C. Relocation Expenses. Company shall reimburse Executive for the expenses he/she and his/her family incur in relocating to the metropolitan area as required by the job in accordance with Companys Relocation Plan and/or as otherwise agreed by Company. Executive agrees to reimburse Company for relocation expenses Company paid based on the following schedule if Executive voluntarily terminates his employment without Good Reason (as defined herein) or is terminated for Cause (as defined herein) within two years after the Commencement Date: one year or less after the Commencement Date 100% reimbursement; more than one year but less than two years after the Commencement Date 50% reimbursement.
D. Other Benefits. In addition to the foregoing, Company will provide Executive with employment benefits and vacation entitlements during the term of this Agreement commensurate with Executives position in the Company and the location of the Executive.
III. Termination.
The terms of this Agreement shall be for the period set out in Section I unless earlier terminated in one of the following ways:
A. Death. This Agreement shall immediately terminate upon the death of Executive. Upon a termination of the Agreement due to Executives death, Executives heirs, executors or administrators, as the case may be, shall be entitled to:
1. (i) Executives Base Salary earned through the date of termination, to the extent not theretofore paid, (ii) any accrued but unused vacation as of the date of termination, (iii) Executives annual bonus under the Companys or its Affiliates annual bonus plan earned with respect to the fiscal year immediately prior to the fiscal year in which the date of termination occurs, to the extent not theretofore paid and (iv) any employee benefits to which the Executive was entitled on the date of termination in accordance with the terms of the plans and programs of the Company, in each case payable within 60 days after the date of death or at such other time at which such amounts are payable pursuant to the terms of an applicable plan or program of the Company (the Accrued Obligations); and
2. the Earned Bonus for the year in which Executives date of death occurs.
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B. Voluntary Termination Without Good Reason. If Executive voluntarily terminates his/her employment for a reason other than Good Reason (as defined herein) and provides the Company (and does not revoke) an executed release pursuant to Section III.H., then Executive shall receive the following payments (subject to any applicable payroll or other taxes required to be withheld):
1. the Accrued Obligations; and
2. provided the Executive is providing consulting services pursuant to Section IV, an amount equal to two times the Executives Base Salary, payable in equal installments on the Companys regular pay dates, for the two-year period beginning on the date of termination, which payments shall cease if Executives consulting services cease prior to the end of such period.
C. Involuntary Termination Without Cause or Voluntary Termination for Good Reason. If the Company terminates this Agreement without Cause (as defined below) or if Executive terminates this Agreement with Good Reason (as defined below), and in either case Executive provides (and does not revoke) an executed release pursuant to Section III.H., then Executive shall receive the following payments (subject to any applicable payroll or other taxes required to be withheld):
1. the Accrued Obligations;
2. an amount equal to two times the Executives Base Salary, payable in equal installments on the Companys regular pay dates, for the two-year period beginning on the date of termination; and
3. provided the Executive is providing consulting services pursuant to Section IV, an amount equal to the projected annual bonus payable to Executive as of the date of termination, determined based on the weekly performance projection for the remainder of the calendar year as of the second Friday following the date of termination, as applied to the terms and conditions of the applicable Exhibit A, which amount shall be payable in equal installments on the Companys regular pay dates, for the two-year period beginning on the date of termination, which payments shall cease if the Executives consulting services cease prior to the end of such period.
D. For purposes of this Agreement, Executive shall have Good Reason to terminate this Agreement if one of the following events occurs without the Executives express written consent:
1. both (i) a reduction in any material respect in the Executives position(s), duties or responsibilities with the Company, and (ii) an adverse material change in the Executives reporting responsibilities, titles or offices with the Company, other than, for purposes of clauses (i) and (ii), a reduction or adverse change attributable to the fact that the Company is no longer a privately-held company;
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2. a reduction of 20 percent (20%) or more in the Executives rate of annual Base Salary other than a reduction made after the Company determines such reduction is a reasonably necessary step or component to address potential breaches or violations of any debt covenants; or
3. any requirement of the Company that the Executive be based more than 50 miles from the facility where the Executive is based as of the Commencement Date.
In order to terminate this Agreement for Good Reason, Executive must first satisfy the following notice and opportunity to cure requirements. Before terminating this Agreement and his/her employment hereunder for Good Reason, Executive must give written notice to Company as to the details of the basis for such Good Reason within thirty (30) days following the date on which Executive alleges the event giving rise to such Good Reason occurred, and Company must fail to provide a reasonable cure within thirty (30) days after its receipt of such notice.
E. Termination for Cause. Company, upon written notice to Executive, may terminate the employment of Executive at any time for Cause. For purposes of this Paragraph, Cause shall be deemed to exist if, and only if, the Board of Directors of West Corporation, in good faith, determine that Executive has engaged, during the performance of his/her duties hereunder, in significant objective acts or omissions constituting dishonesty, willful misconduct, or gross negligence relating to the business of Company.
F. If Company terminates this Agreement and Executives employment hereunder for Cause (as defined herein), then Executive shall be entitled only to the Accrued Obligations. Executive hereby agrees that no bonus shall be earned in the calendar year in which the Executive is terminated for Cause.
G. Transfers within Company or any of its Affiliates. In the event Executive and Company agree that Executive will transfer to another position within Company or any of its Affiliates, the terms of this Agreement, other than the applicable Exhibit A in effect at the time of the transfer, shall remain in effect and govern Executives relationship with Company or any of its Affiliates in his/her new position. Upon Executives transfer to another position within Company or any of its Affiliates, Company shall be obligated under this Agreement and the applicable Exhibit A at the time of transfer only to pay Executives Base Salary earned through the date of transfer and any Earned Bonus through the end of the month immediately preceding the date of transfer, determined in accordance with Section II.B., and to reimburse Executive for expenses properly incurred through the date of transfer. Executive and the Affiliate to which Executives employment is transferred may agree to a new Exhibit A covering Executives new position to replace the Exhibit A in effect at the time of transfer. In the event no such Exhibit A is agreed upon, Executive will be entitled to the same Base Salary as Executive was receiving at the time of the transfer, but shall not be entitled to earn any further bonus or have any other rights under the Exhibit A previously in effect.
H. Additional Terms. Upon termination for any reason Executive (i) agrees to provide reasonable cooperation to Company at Companys expense in winding up Executives work for Company and transferring that work to other individuals as designated by Company, and (ii) agrees reasonably to cooperate with Company in litigation as requested by Company.
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To be eligible for any payments under this section, Executive must (i) execute and deliver to Company, within 45 days after Executives date of termination, a final and complete release in a form that is acceptable and approved by Company (and not revoke such release), and (ii) in Companys good faith belief, be in full compliance with his/her Restrictive Covenants of Section V below.
IV. Consulting
A. In the event of termination of employment pursuant to Section III.B or III.C above, Company and Executive agree that Company shall retain the services of Executive as a consultant for a period of two year[s] from the date of termination and that Executive will serve as a consultant to Company.
B. During the period of consulting, Executive shall be acting as an independent contractor. As part of the consulting services, Executive agrees to provide certain services to Company, including, but not limited to, the following:
1. oral and written information with reference to continuing programs and new programs which were developed or under development under the supervision of Executive;
2. meeting with officers and managers of Company to discuss and review programs and to make recommendations;
3. analysis, opinion and information regarding the effectiveness and public acceptance of their programs.
C. During the consulting period, Executive shall continue to receive, as compensation for his consulting, the payments set forth in Sections III.B.2 and III.C.3 above payable in installments concurrent with Companys executive payroll schedule (but not less frequently than monthly). Except as provided in Section III.C.3 above, no bonus of any kind will be paid during the period of consulting.
D. Executive hereby agrees that during the period of consulting, Executive will devote his/her full attention, energy and skill to the performance of his/her duties and to furthering the interest of Company and affiliates, which shall include, and Executive acknowledges, a fiduciary duty and obligation to Company. Executive acknowledges that such consulting shall terminate upon commencement of Other Employment pursuant to Section IV.
E. Executive and Company hereby agree that Executive may terminate the consulting services at any time and thereby terminate all payment obligations of the Company (other than those pursuant to Section III.B.1, III.C.1 and III.C.2). Executive and Company hereby agree that in the event Executive chooses, during the term of the consulting period to singly, jointly, or as a member, employer or agent of any partnership, or as an officer, agent, employee, director, stockholder or investor of any other corporation or entity, or in any other capacity, engage in any business endeavors of any kind or nature whatsoever, other than those of Company or its Affiliates and other than those existing at the time of entering into this agreement without the express written consent of Company (Other Employment) the consulting period
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shall terminate immediately and all further obligations of the Company shall terminate(other than those pursuant to Section III.B.1, III.C.1 and III.C.2); provided, however, that Executive may own stock in a publicly traded corporation. Executive agrees that Company may at its sole discretion give or withhold its consent and understands that Companys consent will not be unreasonably withheld if the following conditions are met:
1. Executives intended employment will not interfere in Companys opinion with Executives duties and obligations as a consultant, including the fiduciary duty assumed hereunder; and
2. Executives intended employment or activity would not, in the opinion of Company, place Executive in a situation where confidential information of Company or its Affiliates known to Executive may benefit Executives new Company; and
3. Executives new employment will not, in Companys opinion, result, directly or indirectly, in competition with Company or its Affiliates, then or in the future.
F. Notwithstanding any provisions in this Agreement to the contrary, the provisions of Section IV shall survive the termination of this Agreement and the termination of any consulting period.
G. Company shall reimburse Executive for all reasonable business expenses incurred by Executive in furtherance of his/her consulting duties pursuant to this Agreement provided the expenses are pre-approved by Company.
H. Benefits During Consulting Period. During the period of consulting, Executive shall continue to be covered under all medical, dental, vision, flexible spending account and Executive assistance plans or programs with respect to the Executive and the Executives dependents with the same level of coverage, upon the same terms and otherwise to the same extent as then provided to actively employed executives of Company unless Executive accepts new employment during the consulting term in accordance with Section IV above, in which event all benefits will cease, at Companys option, when the new employment is accepted by Executive. The benefits provided shall include insurance benefits based upon eligibility pursuant to the applicable plans. If the insurance plans do not provide for continued participation, the continuation of benefits shall be pursuant to COBRA. In the event Executives benefits continue pursuant to COBRA and Executive accepts new employment during the consulting term, Executive may continue benefits thereafter to the extent allowed under COBRA. In no event shall the amounts of any benefits available under any such policy in any year affect the amount of benefits available in any other year or shall the right to any of such benefits be subject to liquidation or exchange for another benefit.
V. Restrictive Covenants.
A. Confidential Information. In the course of Executives employment, Executive will be provided with certain information, technical data and know-how regarding the business of Company and its Affiliates and their products, all of which is confidential (hereinafter referred to as Confidential Information). Independent of any obligation under any other section of the Agreement, Executive agrees to receive, hold and treat all Confidential Information received
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from Company and its Affiliates as confidential and secret and agrees to protect the secrecy of said Confidential Information. Executive agrees that the Confidential Information will be disclosed only to those persons who are required to have such knowledge in connection with their work for Company and that such Confidential Information will not be disclosed to others without the prior written consent of the Company. The provisions hereof shall not be applicable to: (a) information which at the time of disclosure to Executive is a matter of public knowledge; or (b) information which, after disclosure to Executive, becomes public knowledge other than through a breach of this Agreement. Unless the Confidential Information shall be of the type herein before set forth, Executive shall not use such Confidential Information for his/her own benefit or for a third partys or parties benefit at any time. Upon termination of employment, Executive will return all books, records and other materials provided to or acquired by or created by Executive during the course of employment which relate in any way to Company or its business. The obligations imposed upon Executive by this paragraph shall survive the expiration or termination of this Agreement.
B. Covenant Not to Compete. The parties understand that as a part of his/her job duties, Executive will be exposed to certain Confidential Information, client and potential client relationships, and supplier, licensee, or other business relationships of the Company and its Affiliates (some of which may be developed by Executive in the course of Executives employment). Employee acknowledges such information is the sole and exclusive property of the Company constituting valuable, special and unique property of the Company in which the Company has and will have a protectable interest. The parties therefore agree that it is necessary to enter into this Agreement to protect the Companys interests. Independent of any obligation under any other contract or agreement between Executive and the Company, during the term of this Agreement, and for a period of one (1) year following the separation of his/her employment with the Company, the Executive shall not:
1. directly or indirectly, for himself/herself, or as agent of, or on behalf of, or in connection with, any person, firm, association or corporation, directly or indirectly contact, solicit business from, or in any way do business with any customer, prospective customer, or account of the Company or any of its Affiliates with whom Executive had personal contact during the course of his/her employment with Company; or
2. directly or indirectly, for himself/herself, or as agent of, or on behalf of, or in connection with, any person, firm, association or corporation, induce or attempt to induce any supplier, licensee or other business relation of the Company or any of its Affiliates with whom Executive had personal contact during the course of his/her employment with Company, to cease doing business with the Company or any of its Affiliates or in any way interfere with the Companys relationship or cause Companys costs to increase with any such supplier, licensee, or other business relation of the Company. Executive further acknowledges that in view of the nature of the business in which the Company is engaged, the restrictions contained in this section are reasonable and necessary in order to protect the legitimate interests of the Company. Executive further acknowledges and agrees that any violation of this section will result in irreparable injuries to the Company. Executive, therefore, acknowledges that in the event of his/her violation of the provisions of this section, the Company shall be entitled to obtain from any court of competent jurisdiction preliminary and permanent injunctive relief as well as attorneys fees and 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
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rights or remedies to which the Company may be entitled. In addition to other available remedies, Executives breach of this section shall entitle Company to return of any amounts paid pursuant to Section III.B. or Section III.C. of this Agreement.
C. Developments.
1. Executive will make full and prompt disclosure to Company of all inventions, improvements, discoveries, methods, developments, software and works of authorship, whether patentable or not, which are created, made, conceived, reduced to practice by Executive or under his/her direction or jointly with others during his/her employment by Company, whether or not during normal working hours or on the premises of Company which relate to the business of Company as conducted from time to time (all of which are collectively referred to in this Agreement as Developments).
2. Executive agrees to assign, and does hereby assign, to Company (or any person or entity designated by Company) all of his/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.
3. Executive agrees to cooperate fully with Company, both during and after his/her employment with Company, with respect to the procurement, maintenance and enforcement of copyrights and patents (both in the United States and foreign countries) relating to Developments. Executive shall sign all papers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignment or priority rights, and powers of attorney, which Company may deem necessary or desirable in order to protect its rights and interest in any Developments.
D. Diversion of Employees. During the term of Executi
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