EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of October 3, 1994, by and between ICT GROUP,
INC., a Pennsylvania corporation (hereinafter called "Company"), and Carl E.
Smith, an individual (hereinafter called "Employee").
WITNESSETH
Company wishes to employ Employee and Employee wishes to enter into
the employ of Company on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the facts, mutual promises and
covenants, contained herein and intending to be legally bound hereby, Company
and Employee agree as follows:
1. Employment. Company hereby employs Employee as Senior Vice
President of Finance and Administration and Chief Financial Officer and Employee
hereby accepts employment by Company for the period of time and upon the
terms, conditions and restrictions contained in this Agreement.
2. Duties and Responsibilities.
(a) Employee agrees to assume such duties and responsibilities
normally associated with the position indicated above, and as may be assigned
to Employee by the President of the Company from time to time. Employee shall
perform any other duties reasonably required by Company and, if requested by
Company, shall serve as an officer or director of Company without additional
compensation.
(b) Throughout the term of this Agreement, Employee shall devote his
entire working time, energy, skill and best efforts to the performance of his
duties hereunder in a manner which will faithfully and diligently further the
business and interest of Company. During the term of this Agreement, Employee
may not, directly or indirectly, do any work for any other company
3. Term. This Agreement shall be for a term of one year, commencing on
October 3, 1994 and ending on October 2, 1995 unless sooner terminated as
hereinafter provided.
4. Compensation
(a) For all of the service rendered by Employee to Company, Employee
shall receive a gross annual salary of $100,000.00 per year, less taxes and
other deductions required by law, payable in reasonable periodic installments
in accordance with Company's regular payroll practices in effect from time
to time. Employee's base salary shall be reviewed by Company's Board of
Directors annually and may be adjusted by the Board of Directors in its sole
discretion
(b) In addition to Employee's base salary, Company may pay Employee
from time to time such bonuses or other additional compensation as Company may
determine in its soles discretion.
(c) Throughout the term, of this Agreement, Employee shall be
eligible to participate in Company's insurance and other benefit plans and
programs subject to their terms, conditions and restrictions. Nothing herein
shall preclude Company from modifying or terminating any insurance or other
benefit plan or program.
(d) Employee shall accrue vacation pay at a rate of 1.5 days per
full-month of employment
(e) Employee will not receive any remuneration or any other benefit
from any client or any other company or individual in connection with any
transaction in which Company is involved, directly or indirectly. Nor will
Employee assign or give any part of the compensation which he receives from
Company to any other employee, agent or representative of Company, to any
client or any of its employees, agents or representatives, or to any other
person or entity involved, directly or indirectly, with Company.
5. Expenses. Company will reimburse Employee for all reasonable
expenses incurred by Employee in connection with the performance of Employee's
duties hereunder upon receipt of vouchers therefor satisfactory to Company and
in accordance with Company's regular reimbursement procedures and practices
in effect from time to time.
6. Post-Termination Payments.
(a) If Employee is terminated by Company pursuant to Paragraph 10
hereof, Company shall pay to Employee a monthly severance payment in an amount
equal to Employee's monthly salary at the time of termination for six months.
(b) Employee shall make reasonable efforts to obtain replacement
income (through employment and other sources) during the period in which
Employee receives post-termination payments from Company.
(c) Company's obligation to make post-termination payments pursuant to
Paragraph 6(a) shall be offset by any compensation earned by Employee, as an
employee, consultant, independent contractor or otherwise, during the period in
which Employee receives such post-termination payments.
(d) Company's obligations under Paragraph 6(a) shall cease in the
event Employee fails to make reasonable efforts to obtain replacement income
or in the event Employee breaches any of the restrictions or obligations set
forth in Paragraphs 12 and 13 of this Agreement
7. Disability. If Employee is unable to perform his duties hereunder
due to partial or total disability or incapacity resulting from a mental or
physical illness, injury or any other cause for a period of thirteen (13)
consecutive weeks or for a cumulative period of nineteen (19) weeks during any
twelve-month period, Company shall have the right to terminate this Agreement
due to Employee's disability or incapacity, in which event Company shall have
no further obligations or liabilities hereunder after the date of such
termination. The termination of Employee's employment with Company pursuant to
this Paragraph shall not release Employee from Employee's obligations and
restrictions under Paragraphs 12 and 13 of this Agreement.
8. Death. If Employee dies, Company shall have no further obligations
or liabilities to Employee's estate or legal representative or otherwise after
the date of his death
9. Discharge for Cause. Company may discharge Employee at any time
for "Cause", which shall include, but not be limited to; willful misconduct,
fraud, misappropriation, malfeasance, misfeasance, nonfeasance, embezzlement,
gross negligence, self-dealing, dishonesty, misrepresentation, conviction of a
crime of moral turpitude, or material violation by Employee of any Company
policy or provision of this Agreement. In the event Company terminates
Employee's employment for Cause, Company shall have no further obligations or
liabilities to Employee after the date of such discharge. The termination of
Employee's employment with Company pursuant to this Paragraph shall not
release Employee from Employee's obligations and restrictions under Paragraphs
12 and 13 of this Agreement.
10. Discharge Not for Cause. Notwithstanding any other provision of
this Agreement, Company may discharge Employee at any time without cause by
providing Employee with 30 days written notice, which notice Company may
waive, in whole or in part, in its sole discretion, by paying Employee for
such 30 days. Upon termination of Employee pursuant to this Paragraph, Company
shall be obligated to provide Employee with post-termination payments in
accordance with Paragraph 6, but shall have no further
obligations or liabilities to Employee after the date of his termination. The
termination of Employee's employment with Company pursuant to this paragraph
shall not release Employee from Employee's obligations and restrictions under
Paragraphs 12 and 13 of this Agreement.
11. Termination by Employee. Employee may terminate his employment
under this Agreement at any time by providing Company with 30 days written
notice, which notice Company may waive, in whole or in part, in its sole
discretion, by paying Employee for such 30 days, Company shall have no further
obligations or liabilities to Employee after the date of his termination. The
termination of Employee's employment with Company pursuant to this Paragraph
shall not release Employee from Employee's obligations and restrictions under
Paragraphs 12 and 13 or this Agreement.
12. Company Property.
(a) All advertising, sales, manufacturers' and other materials or
articles or information, including without limitation data processing reports,
client sales analyses, invoices, price lists or information, samples or any
other materials or data of any kind furnished to Employee by Company or
developed by Employee on behalf of Company or at Company's direction or for
Company's use or otherwise in connection with Employee's employment hereunder,
are and shall remain the sole and confidential property of Company.
(b) Immediately upon termination of Employee's employment, whether by
Employee or Company, whether during the term of this Agreement, upon its
expiration or subsequent to its expiration, Employee shall deliver to Company,
all Company property (for example, keys and credit cards) and all documents,
books, records, lists and other documents relating to Company's business,
regardless of where or by whom said writings were kept or prepared, retaining
no copies.
(c) In the event Employee receives notice from Company that his
employment is or will be terminated or Employee provides Company with notice
of his intent to resign, within five (5) days of receiving or providing such
notice, and thereafter as may be requested by Company, Employee shall
provide Company with a list of all clients and potential clients with whom he
is working and/or negotiating and a summary of the status of each matter with
which he is involved, directly or indirectly.
13. Restrictive Covenants, Trade Secrets, Etc.
(A) For a period of one (1) year after the termination of his
employment with Company, for any reason whatsoever, whether during the term of
this Agreement, upon its expiration or subsequent to it expiration, whether by
Employee or Company, Employee shall not for his own benefit or for the benefit
of any third party,
directly or indirectly, in any capacity, participate in any of the following
activities: (i) hire or do any business with any employee of Company or
otherwise induce or attempt to influence any employee of Company to terminate
his or her employment with Company, (ii) divert, solicit, or do any business
with any current, former (within two (2) years of the date of termination), or
potential (engaged in discussion with Company as of the date of termination)
client of Company; or (iii) cause or attempt to cause any current, former, or
potential client to refrain from doing business with Company. In light of the
fact that the clients of Company will be engaged in operations nationwide and
Company will be contacting potential customers for its clients throughout the
entire United States, the restrictions set forth in this Paragraph 13(a) shall
apply throughout the entire United States.
(b) During the term of this Agreement and at all times thereafter,
Employee shall not use for his personal benefit, or disclose, communicate or
divulge to, or use for the direct or indirect benefit of any person, firm,
association or company other than Company, any material referred to in
Paragraph 12 above or any information regarding the business methods, business
policies, procedures, techniques, research or development projects or results,
trade secrets, or other knowledge or processes of or developed by Company or
any names and addresses of clients or customers or any data on or relating to
past, present or prospective clients or customers or any other confidential
information relating to or dealing with the business operations or activities
of Company, made known to Employee or learned or acquired by Employee while in
the employ of Company.
(c) Any and all writing, inventions, improvements, processes,
procedures and/or techniques which Employee may make, conceive, discover or
develop, either solely or jointly with any other person or persons, at any
time during the term of this Agreement, whether during working hours or at
any other time and whether at the request or upon the suggestion of Company or
otherwise, which relate to or are useful in connection with any business now or
hereafter carried on or contemplated by Company, including developments or
expansions of its present fields of operations, shall be the sole and
exclusive property of Company. Employee shall make full disclosure to Company
of all such writings, inventions, improvements, processes, procedures and
techniques, and shall do everything necessary or desirable to vest the
absolute title thereto in Company. Employee shall write and prepare all
specifications and procedures regarding such inventions improvements,
processes, procedures and techniques and other aid and assist Company so that
Company can prepare and present applications for copyright or Letters Patent
therefor and can secure such copyright or Letters Patent wherever possible,
as well
as reissues, renewals, and extensions thereof, and can obtain the record title
to such copyright or patents so that Company shall be the sole and absolute
owner thereof in all countries in which it may desire to have copyright or
patent protection. Employee shall not be entitled to any additional or special
compensation or reimbursement regarding any and all such writings, inventions,
improvements, processes, procedures and techniques, except that Company shall
reimburse Employee for any expenses which Employee may incur in vesting
absolute title thereto in Company.
(d) Employee acknowledges that the restrictions contained in the
foregoing subparagraphs (a), (b), and (c), in view of the nature of the
business in which Company is engaged, are reasonable and necessary in order
to protect the legitimate interests of Company, and that any violation thereof
would result in irreparable injuries to Company, and Employee therefore
acknowledges that, in the event of his violation of any of these restrictions,
Company shall be entitled to obtain from any court of competent jurisdiction
preliminary and permanent injunctive relief as well as damages and an
equitable accounting of all earnings, profits and other benefits arising from
such violation, which rights shall be cumulative and in addition to any
other rights or remedies to which Company may be entitled.
(e) Employee agrees that if any or any portion of the foregoing
covenants or the application thereof, is construed to be invalid or
unenforceable, the remainder of such covenant or covenants shall not be
affected and the remaining covenant or covenants shall then be given full force
and effect without regard to the invalid or unenforceable portion(s). If the
covenant is held to be unenforceable because of the area covered, the duration
thereof or the scope thereof, Employee agrees that the court making such
determination shall have the power to reduce the area and/or the duration
and/or scope thereof, and the covenant shall then be enforceable in its
reduced form.
(f) If Employee violates any of the restrictions contained in the
foregoing subparagraph (a), the restrictive period shall not run in favor of
Employee from the time of the commencement of any violation until such time as
the violation shall be cured by Employee to the satisfaction of Company.
14. Prior Agreements. Employee represents to Company (a) that there
are no restrictions, agreements or understandings whatsoever to which
Employee is a party which would prevent or make unlawful his execution of
this Agreement or his employment hereunder; (b) there are no agreements,
restrictions or understandings whatsoever to which Employee is a party which
place any limitations as to the companies or individuals with whom he may ado
business; (c) that his execution of this Agreement
and his employment hereunder shall not constitute a breach of any contract,
agreement or understanding, oral or written, to which he is a party and by which
he is bound; and (d) that he is free and able to execute this Agreement and to
enter into employment by Company.
15. Miscellaneous.
(a) Waiver. The waiver by Company of a breach of any provision of
this Agreement by Employee shall not operate or be construed as a waiver of
any subsequent breach by Employee. No waiver shall be valid unless in writing
and signed by Company's President.
(b) Controlling Law. This Agreement and all questions relating to
validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed
by and construed in accordance with the laws of the Commonwealth of
Pennsylvania, and without the aid of any canon, custom or rule of law
requiring construction against the draftsman.
(c) Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received only when delivered
(personally, by courier service such as Federal Express, or by other
messenger) or when deposited in the United States mails, registered or
certified mail, postage prepaid, return receipt requested, addressed in the
case of Company, to its President at its principal place of business, and in
case of Employee, to his home address.
(d) Binding Nature of Agreement. This Agreement shall be binding upon
and inure to the benefit of Company and its successors and assigns and shall
be binding upon Employee, his heirs and legal representatives.
(e) Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument.
(f) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for
any reason any other or others of them may be invalid or unenforceable in
whole or in part.
(g) Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or
written. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof. This Agreement may not be modified or amended other
than by an agreement in writing and signed by the Company's President.
(h)Paragraph Headings. The paragraph headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
(i) Survival. The covenants contained in Paragraphs 12 and 13 shall
survive the expiration of this Agreement and the termination of Employee's
employment.
(j) Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on
a Saturday, Sunday or holiday on which federal banks are or may elect to be
closed, then the final day shall be deemed to be the next day which is not a
Saturday, Sunday or such holiday.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement in Langhorne, Pennsylvania on the date first above written.
ICT GROUP, INC.
By: /s/ John J. Brennan /s/ Carl E. Smith
----------------------------- ------------------------------------
John J. Brennan Employee
10/3/94 10/3/94
----------------------------- ------------------------------------
Date Date
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
THIS AMENDMENT is made as of the first day of October, 1995, between
ICT GROUP, INC., a Pennsylvania corporation with its principal offices at 800
Town Center Drive, Langhorne, Pennsylvania 19047 (the "Company") and CARL E.
SMITH, an individual residing at 2075 Canterbury Lane, Jamison, Pennsylvania
18929 (the "Employee").
BACKGROUND
The Company and the Employee are parties to an Employment
Agreement, dated October 3, 1994 (the "Agreement"). Terms are used herein as
defined in the Agreement unless otherwise defined herein. The parties hereto
desire to amend the Agreement to the extent specified herein.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein and in the Agreement, the parties hereto, each
intending to be legally bound hereby, agree as follows:
1. Section 3 of the Agreement is hereby amended in its
entirety to read as follows:
Term. This Agreement shall be for a term of one
(1) year, commencing on October 3, 1994 and ending October 2, 1995, unless
sooner terminated as hereinafter provided. Unless either party elects to
terminate this Agreement at the end of the original or any renewal term by
giving the other party notice of such election at least ninety (90) days before
the expiration of the then current term, this Agreement shall be deemed to have
been renewed for an additional term of one (1) year commencing on the day after
the expiration of the current term.
2. The Agreement shall continue in full force and effect, and
shall not be changed by this Amendment except to the extent contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have hereunto duly
executed this Agreement as of the date first written above.
/s/ Carl E. Smith
--------------------------
CARL E. SMITH
ICT GROUP, INC.
By: /s/ John J. Brennan
--------------------------
Name: John J. Brennan
Title: President