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EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into this 7th day of May, 2003,
between
Intercall, Inc. ("Employer"), a Delaware
corporation, and Joseph Scott Etzler
("Employee").
RECITALS
A.
WHEREAS, West Corporation ("West") has entered into a purchase
agreement to acquire Employer dated March
27, 2003 (the "Purchase Agreement"),
which acquisition is expected to close on
or about May 8, 2003, or shortly
thereafter (the "Closing Date"); and
B.
WHEREAS, Employer and Employee have agreed to continue their
employment relationship after the
acquisition of Employer, conditioned on
Employee's signing this Agreement, and have
agreed on certain terms and
conditions of employment; and
C.
WHEREAS, the parties desire to enter into this Agreement to
memorialize the terms and conditions of the
employment relationship and any
prior and existing employment agreement(s)
between the parties.
NOW THEREFORE, the parties agree as follows;
1.
Employment. Employer agrees to employ Employee in his capacity
as President of Employer. Employer may also
direct Employee to perform such
duties for other entities which now are, or
in the future may be, affiliated
with Employer (the "Affiliates"), subject
to the limitation that Employee's
total time commitment shall be consistent
with that normally expected of
similarly situated executive level
employees. Employee shall serve Employer and
the Affiliates faithfully, diligently and
to the best of his ability. Employee
agrees during the term of this Agreement to
devote his best efforts, attention,
energy and skill to the performance of his
employment and/or consulting duties
and to furthering the interest of Employer
and the Affiliates.
2. Term
of Employment. Employee's employment under this Agreement
shall commence effective as of the Closing Date, and shall continue
for
a period of two years unless terminated or renewed under the
provisions
of Paragraph 6 below. This Agreement shall only be effective in
the
event that the transactions contemplated by the Purchase Agreement
have
been consummated in accordance with such Purchase Agreement. If
such
event does not occur, this Agreement is null and void and neither
party
will have been or will be obligated hereunder. Unless
terminated
pursuant to Paragraph 6(a), the term of employment shall be
extended by
one year at the end of
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each successive year so that at the beginning of each successive
year
the term of this Agreement will be two years.
3.
Compensation. Employer shall pay Employee as set forth in
Exhibit A attached hereto and incorporated
herein as if fully set forth in this
paragraph. Employee may receive additional
discretionary bonuses as determined
by the Board of Directors of Employer in
its sole discretion provided nothing
contained herein shall be construed as a
commitment by the corporation to
declare or pay any such bonuses. Effective
as of the Closing Date, Employee
hereby waives any right or claim to receive
payments pursuant to, or to
otherwise participate in, the Intercall
Severance Plan.
4.
Benefits. In addition to the compensation provided for in
Paragraph 3 above, Employer will provide
Employee with employment benefits
commensurate to those received by other
executive level employees of Employer
during the term of this Agreement.
5.
Other Activities. Employee shall devote substantially all of
his working time and efforts during
Employer's normal business hours to the
business and affairs of Employer and to the
duties and responsibilities assigned
to him pursuant to this Agreement. Employee
may devote a reasonable amount of
his time to civic, community or charitable
activities. Employee in all events
shall be free to invest his assets in such
manner as will not require any
substantial services by Employee in the
conduct of the businesses or affairs of
the entities or in the management of the
assets in which such investments are
made.
6. Term
and Termination. The termination of this Agreement shall
be governed by the following:
(a) The term
of this Agreement shall be for the period
set out in Paragraph 2 unless earlier terminated in one of the
following ways:
(1) Death.
This Agreement shall immediately
terminate upon the death of Employee.
(2) For Cause.
Employer, upon written notice to
Employee, may terminate the employment of Employee at any time
for "cause." For purposes of this paragraph, "cause" shall be
deemed to exist if, and only if, the CEO and COO of Employer,
in good faith, determine that Employee has engaged, during the
performance of his duties hereunder, in significant objective
acts or omissions constituting dishonesty, willful misconduct
or gross negligence relating to the business of Employer.
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(3) Without
Cause. Employer, upon written notice
to Employee, may terminate the employment of Employee at any
time after December 31, 2003, without cause.
(4)
Resignation. Employee, upon written notice
to Employer, may resign from the employment of Employer at any
time.
(b) Accrued
Compensation on Termination. In the event of
termination of the Agreement, Employee shall be entitled to
receive:
(1) salary
earned prior to and including the
date of termination;
(2) any bonus
earned as of the end of the month
immediately preceding the date of termination; and
(3) all
benefits, if any, which have vested as
of the date of termination.
7.
Consulting.
(a) In the
event of termination of employment pursuant to
Paragraph 6(a)(3) or 6(a)(4) above, Employer and Employee agree
that
Employee shall, for a minimum period of twenty-four (24) months
from
the date of termination, serve as a consultant to Employer.
(b) In the
event of termination pursuant to Paragraph
6(a)(2), Employer and Employee agree that Employer may, at its
sole
option, elect to retain the services of Employee as a consultant
for a
period of twenty-four
(24) months from the date of termination and that
Employee will serve as a consultant to Employer if Employer so
elects.
Employer shall make such election within ten (10) business days
from
the date of notice of termination.
(c) During any
period of consulting, Employee shall be
acting as an independent contractor. As part of the consulting
services, Employee agrees to provide certain services to
Employer,
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 Employee;
(2) meeting
with officers and managers
of Employer to discuss and review programs and to make
recommendations;
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(3) analysis,
opinion and information
regarding the effectiveness and public acceptance of their
programs.
(d) During the
consulting period, Employee shall continue
to receive, as compensation for his consulting, the annualized
salary
being paid at the time of termination. No bonus of any kind will
be
paid during any period of consulting.
(e) Employee
hereby agrees that during any period of
consulting, he will devote his full attention, energy and skill to
the
performance of his duties and to furthering the interest of
Employer
and the affiliates, which shall include, and Employee acknowledges,
a
fiduciary duty and obligation to Employer. Employee acknowledges
that
this
prohibition includes, but is not necessarily limited to, a
preclusion from any other employment or consulting by Employee
during
the consulting period except pursuant to Paragraph 7(f)
hereafter.
(f) During the
term of this Agreement, including any
period of consulting, Employee shall not, 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 Employer or
its
Affiliates without the express written consent of Employer;
provided,
however, that Employee may own stock in a publicly traded
corporation.
Employee agrees that Employer may in its sole discretion give
or
withhold its consent and understands that Employer's consent will
not
be unreasonably withheld if the following conditions are met:
(1) Employee's
intended employment will
not interfere in Employer's opinion with Employee's duties and
obligations as a consultant, including the fiduciary duty
assumed
hereunder; and
(2) Employee's
intended employment or
activity would not, in the opinion of Employer, place Employee in
a
situation where Confidential Information of Employer or its
Affiliates
known to Employ
