EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into effective the 1st day of January, 1999,
between West TeleServices Corporation, a Delaware corporation ("Employer"), and
NANCEE R. BERGER ("Employee").
RECITALS
A. WHEREAS, Employer and Employee have agreed to certain terms and
conditions of employment between the parties; and
B. 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 her capacity as
CHIEF OPERATING OFFICER 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 her ability.
Employee agrees during the term of this Agreement to devote her best efforts,
attention, energy and skill to the performance of her 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 the 1st day of January, 1999, and shall continue for a period
of two years unless terminated or renewed under the provisions of Paragraph 6
below.
(a) Unless terminated pursuant to paragraph 6(a), the term of the
employment shall be extended by one year at the end of 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 is 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.
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 her
working time and efforts during the Company's normal business hours to the
business and affairs of the Company and to the duties and responsibilities
assigned to her pursuant to this Agreement. Employee may devote a reasonable
amount of her time to civic, community or charitable activities. Employee in all
events shall be free to invest her 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. The 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 of Employer, in
good faith, determine that Employee has engaged, during the
performance of her duties hereunder, in significant
objective acts or omissions constituting dishonesty, willful
misconduct or gross negligence relating to the business of
Employer.
(3) Without Cause. The Employer, upon written notice to
Employee, may terminate the employment of Employee at any
time without cause.
(4) Resignation. Employee, upon written notice to Employee, 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.
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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.
(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;
(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 her consulting the annualized salary set forth
in Exhibit A. 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 her full attention, energy and skill to the
performance of her 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
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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 duting 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 Employee may benefit Employee's new employer; and
(3) Employee's new employment will not, in Employer's opinion,
result, directly or indirectly, in competition with Employer
or its Affiliates, then or in the future,
(g) Notwithstanding any provisions in this Agreement to the contrary,
the provisions of paragraph 7 shall survive the termination of
this Agreement.
(h) Employer shall reimburse Employee for all reasonable expenses
incurred by Employee in furtherance of her consulting duties
pursuant to this Agreement provided the expenses are pre-approved
by Employer.
(i) Benefits During Consulting Period. Employee and her dependents
shall be entitled to continue their participation in all benefit
plans in effect on the date of Employee's termination from
employment during the period of consulting, under the same terms
and conditions and at the same net cost to Employee as when
employed by Employer unless Employee accepts new employment during
the consulting term in accordance with paragraph 7 above, in which
event all benefits will cease, at Employer's option, when the new
employment is accepted by Employee.
8. Confidential Information. In the course of Employee's employment,
Employee will be provided with certain information, technical data and know-how
regarding the business of Employer and its Affiliates and their products, all of
which is confidential (hereinafter referred to as "Confidential Information").
Employee agrees to receive, hold and treat all confidential information received
from Employer and its Affiliates as confidential and secret and agrees to
protect the secrecy of said Confidential Information. Employee 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 Employer and
that such Confidential Information will not be disclosed to others without the
prior written consent of the Employer. The provisions hereof shall not be
applicable to: (a) information which at the time of disclosure to Employee is a
matter of public knowledge; or (b) information which, after disclosure to
Employee, becomes public knowledge other than through a breach of this
Agreement. Unless the Confidential
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Information shall be of the type herein before set forth, Employee shall not use
such Confidential Information for her own benefit or for a third party's or
parties' benefit at any time. Upon termination of employment, Employee will
return all books, records and other materials provided to or acquired by
Employee during the course of employment which relate in any way to Employer or
its business. The obligations imposed upon Employee by this paragraph shall
survive the expiration or termination of this Agreement.
9. Covenant Not to Compete. Notwithstanding any other provision of this
Agreement to the contrary, Employee covenants and agrees that for the period of
two (2) years following termination of her employment with Employer for any
reason she will not:
(a) directly or indirectly, for herself, or as agent of, or on behalf
of, or in connection with, any person, firm, association or
corporation, engage in any business competing directly for the
customers, prospective customers or accounts of the Employer or
any of its Affiliates with whom Employee had contact or about whom
Employee learned during the course of her employment with Employer
and during the one (1) year immediately preceding the end of her
employment.
(b) induce or attempt to induce any person employed by Employer or any
of its Affiliates, in any capacity, at the time of the termination
of Employee's service with Employer, to leave her employment,
agency directorship or office with Employer or the Affiliate.
(c) induce or attempt to induce any customer of Employer or any of its
Affiliates to terminate or change in any way its business
relationship with Employer or the Affiliate.
Employee agrees the knowledge and information gained by her in the
performance of her duties would be valuable to those who are now, or might
become, competitors of the Employer or its Affiliates and that the business of
Employer and its Affiliates by its nature, covers at least the entire United
States of America and Canada. In the event these covenants not to compete are
held, in any respect, to be an unreasonable restriction upon the Employee, the
Court so holding may reduce the territory, or time, to which it pertains or
otherwise reasonably modify the covenant to the extent necessary to render this
covenant enforceable by said Court for the reasonable protection of Employer and
its Affiliate. The obligations imposed upon Employee by this paragraph are
severable from, and shall survive the expiration or termination of, this
Agreement.
10. Developments
(a) Employee will make full and prompt disclosure to Employer 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 Employee or under her direction or jointly with others
during her employment by Employer, whether or not during normal working
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hours or on the premises or Employer which relate to the business
of Employer as conducted from time to time (all of which are
collectively referred to in this Agreement as "Developments").
(b) Employee agrees to assign, and does hereby assign, to Employer (or
any person or entity designated by Employer) all of her right,
title and interest in and to all Developments and all related
patents, patent applications, copyrights and copyright
applications.
(c) Employee agrees to cooperate fully with Employer, both during and
after her employment with Employer, with respect to the
procurement, maintenance and enforcement of copyrights and patents
(both in the United States and foreign countries) relating to
Developments. Employee shall sign papers, including, without
limitation, copyright applications, patent applications,
declarations, oaths, formal assignments, assignment or priority
rights, and powers of attorney, which Employer may deem necessary
or desirable in order to protect its rights and interest in any
Developments.
11. Injunction and Other Relief. Both parties hereto recognize that the
services to be rendered under this Agreement by Employee are special, unique and
of extraordinary character, and that in the event of the breach of Employee of
the terms and conditions of this Agreement to be performed by her, or in the
event Employee performs services for any person, firm or corporation engaged in
the competing line of business with Employer as provided in Paragraph 9, or if
Employee shall breach the provisions of this Agreement with respect to
Confidential Information or consulting services, then Employer shall be
entitled, if it so elects, in addition to all other remedies available to it
under this Agreement or at law or in equity to affirmative injunctive relief.
12. Severability. In the event that any of the provisions of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such invalidity or unenforceability shall not affect the remainder
of this Agreement and same shall be construed as if such invalid or
unenforceable provisions had never been a part hereof. In the event any court
would invalidate or fail to enforce any provision of Paragraph 7 and or
Paragraph 9 of this Agreement, Employee shall return any sums paid to Employee
by Employer pursuant to the consulting provision in paragraph 7 hereof.
13. Governing Law. This Agreement shall be governed by the laws of the
State of Nebraska.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties respecting the employment of Employee by Employer and
supersedes all prior understandings, arrangements and agreements, whether oral
or written, including without limitation, any existing employment agreement, and
may not be amended except by a writing signed by the parties hereto.
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15. Notice. Notices to Employer under this Agreement shall be in writing
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and sent by registered mail, return receipt requested, at the following address:
President and CEO
West TeleServices Corporation
11808 Miracle Hills Drive
Omaha, NE 68154
16. Miscellaneous. Employee acknowledges that:
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a) She has consulted with or had an opportunity to consult with an
attorney of Employee's choosing regarding this Agreement.
b) She will receive substantial and adequate consideration for her
obligations under this Agreement.
c) She believes the obligations, terms and conditions hereof are
reasonable and necessary for the protectable interests of Employer
and are enforceable.
d) This Agreement contains restrictions on her post-employment
activities.
IN WITNESS WHEREOF, Employer has, by its appropriate officers, executed
this Agreement and Employee has executed this Agreement as of the day and year
first above written.
WEST TELESERVICES CORPORATION,
Employer
By: /s/ Tom Barker
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Its: President/CEO
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/s/ Nancee Berger
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Employee
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WEST TELESERVICES CORPORATION
MEMORANDUM
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To: Nancee Berger
From: Tom Barker
Date: December 11, 2000
Re: 2001 Compensation Plan - Exhibit A
The compensation plan for 2001 while you are employed as Chief Operating Officer
for West TeleServices Corporation is being revised as indicated below:
1. Your base salary will be $290,000.00. Should you elect to voluntarily
terminate your employment, you will be compensated for your services
through the date of your actual termination per your Employment Agreement.
This will be reviewed on an annual basis and revised, if necessary in
accordance with the consumer price index.
2. Effective January 1, 2001, you will be eligible to receive a performance
bonus based on year-to-date growth of profits over the same period of the
prior year. This bonus will be calculated by multiplying the year-to-date
growth in profits for each quarter by the corresponding profit growth
participation factor from the table below, minus bonus paid year-to-date
for the respective calendar year.
Profit Growth Profit Growth Participation Factor
------------------------ ----------------------------------
0% - 14.99% 0
15% - 19.99% .013
20% - 24.99% .014
25% - 29.99% .015
30%+ .016
Please note that a negative year-to-date profit calculations at the end of
any given quarter will result in "loss carry forward" to be applied to the
next quarterly year-to-date calculation. All bonuses will be paid within
thirty (30) days of the end of the quarter.
3. For the purposes of this Exhibit A, profit shall be defined as pre-tax
profit growth of the Company on a consolidated basis.
4. At the discretion of management, you may receive an additional bonus based
on the Companies' and your individual performance.
5. Your Compensation Plan for the year 2002 will be presented no later than
December 1, 2001.
6. The benefit plans, as referenced in Section 7(i), shall include insurance
plans based upon eligibility pursuant to the plans. If the insurance plans
do not provide for continued participation, the continuation of benefits
shall be pursuant to COBRA. In the event Employee's benefits continue
pursuant to COBRA and Employee accepts new employment during the consulting
term, Employee may continue benefits thereafter to the extent allowed under
COBRA. In no event shall benefits plans include the 401K Plan or the 1996
Stock Incentive Plan.
/s/ Nancee Berger
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Employee - Nancee Berger
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