Exhibit 10.22
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made this 15th day of May, 2003 (the "Effective Date"),
is by and between NCO Financial Systems, Inc., a Pennsylvania corporation,
("Company"), and Xxxx X. Xxxxxxx, an individual ("Employee").
W I T N E S S E T H:
WHEREAS, Company wishes to employ Employee and Employee agrees to
accept employment and be employed by Company on the terms and conditions to be
contained in this Agreement.
NOW, THEREFORE, in consideration of the facts, mutual promises and
covenants contained herein, intending to be legally bound hereby, Company and
Employee agree as follows:
1. Definitions. As used herein, the following terms shall have the
meanings set forth below unless the context otherwise requires.
"Affiliate" shall mean a person who with respect to any entity,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such entity.
"Annual Bonus" shall mean the bonus payment set forth in Section 5(b),
as such amount may be adjusted from time to time.
"Base Compensation" shall mean the annual rate of compensation set
forth in Section 5(a), as such amount may be adjusted from time to time.
"Board" shall mean the Board of Directors of Company.
"Business" shall mean the business conducted by Company on the date of
execution of this Agreement, including without limitation any business in the
collection and/or management of accounts receivable and including business
activities in developmental stages, business activities which may be developed
by Company, or any Subsidiary or corporate parent thereof or entity sharing a
common corporate parent with Company, during the period of Employee's employment
by Company, and all other business activities which flow from a reasonable
expansion of any of the foregoing, including any business engaged in by Company
subsequent to the execution of this Agreement in which Employee participates.
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"Cause" shall mean any one or more of the following:
(a) if Employee is convicted of a felony involving fraud,
theft or embezzlement or has entered a plea of nolo contendere (or similar plea)
to a charge of such an offense; or
(b) if Employee commits any act of fraud or deliberate
misappropriation relating to or involving Company; or
(c) habitual intoxication or drug addiction; or
(d) if Employee commits a material breach of this Agreement,
including, but not limited to, failure to comply with the rules and regulations
of Company or to perform the duties hereunder to Company's reasonable
satisfaction, which breach is not cured by Employee after thirty (30) days prior
written notice and opportunity to cure.
"Commencement Date" shall have the meaning specified in Section 4
hereof.
"Confidential Information" shall have the meaning specified in Section
14(c) hereof.
"Customer" shall mean any individual or entity to whom Company has
provided goods or services and with whom Employee had, alone or in conjunction
with others, Material Contact during the twelve (12) months prior to the
termination of employee's employment.
"Disability" shall mean Employee's inability, for a period of 90
consecutive days, or more than 180 days in the aggregate over a consecutive
period of eighteen months, to perform the essential duties of Employee's
position, with or without any reasonable accommodation required by law, due to a
mental or physical impairment which substantially limits one or more major life
activities.
"Material Contact" shall mean that (i) Employee had business dealings
with Customer on Company's behalf; (ii) Employee was responsible for supervising
or coordinating the dealings between such Customer and Company; or (iii)
Employee obtained Confidential Information about Customer as a result of
Employee's association with Company.
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"Potential Customer" shall mean any individual or entity to whom
Company has actively sought to sell goods or services within the twelve (12)
month period immediately prior to the termination of Employee's employment and
with whom Employee had Material Contact on Company's behalf during that same
time period.
"Restricted Area" shall have the meaning specified in Section 14(a)
hereof.
"Restricted Period" shall mean:
(a) For purposes of Section 14(a)(A), from the date hereof
until six (6) months after the later of the date that (i) Employee's employment
is terminated by either Employee or Company for any reason whatsoever; or (ii)
the final payment is made by Company to Employee pursuant to this Agreement or
any other agreement between the parties hereto; and
(b) For purposes of Section 14(a)(B) and 14(c), for a period
of two (2) years after the later of the date that (i) Employee's employment is
terminated by either Employee or Company for any reason whatsoever or (ii) the
final payment is made by Company to Employee pursuant to this Agreement or any
other agreement between the parties hereto.
"Subsidiary" shall mean any corporation in which Company owns directly
or indirectly 50% or more of the Voting Stock or 50% or more of the equity; or
any other venture in which it owns either 50% or more of the voting rights or
50% or more of the equity.
"Term of Employment" shall mean the period specified in Section 4
hereof and any extension thereof and as the same may be modified in accordance
with this Agreement.
2. Employment. Company hereby employs Employee and Employee hereby
accepts employment by Company for the period and upon the terms and conditions
specified in this Agreement.
3. Office and Duties.
(a) Employee shall serve as Executive Vice President, Sales
and Marketing. In such capacity, Employee shall render such services as are
necessary and desirable to protect and advance the best interests of Company,
acting, in all instances, under the supervision of and in accordance with the
directions issued by the Company's Chief Executive Officer or his designee.
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(b) For as long as Employee shall remain an employee of
Company, Employee's entire working time, energy, skill and best efforts shall be
devoted to the performance of Employee's duties hereunder in a manner which will
faithfully and diligently further the business and interests of Company.
(c) Employee's services will be conducted at Company's offices
in Horsham, Pennsylvania and at such other places as Employee's duties may
require; provided however, that Employee shall not be required by Company to
relocate his principal residence without his consent, and shall not be required
to perform his normal duties hereunder in any location that is greater than
fifty (50) miles from his principal residence, except in the course of normal
daily business travel.
4. Term. Employee shall be employed by Company for a Term of three (3)
years (the "Term"), commencing on the Effective Date and ending on the third
(3rd) anniversary thereof, unless sooner terminated as hereinafter provided.
Unless either party elects to terminate this Agreement at the end of the Term or
any Additional Term (as hereinafter defined) by giving the other party written
notice of such election at least sixty (60) days before the expiration of the
Term or any Additional Term, the Term of Employment shall be deemed to have been
extended for an additional term of one (1) year ("Additional Term") commencing
on the day after the expiration of the Term or any Additional Term and
thereafter from year to year until terminated in accordance herewith.
5. Compensation and Benefits.
(a) For all of the service rendered by Employee to Company,
Employee shall receive Base Compensation, Annual Bonus and any other
compensation in accordance with the provisions set forth in Exhibit "A" attached
hereto and made part hereof.
6. Fringe Benefits. As part of his compensation, Employee shall be
entitled to the benefits set forth below (the "Fringe Benefits") during the Term
of Employment:
(a) Employee shall be eligible to participate in any health,
life, accident or disability insurance, sick leave or other benefit plans or
programs made available to other similarly situated employees of Company as long
as they are kept in force by Company and provided that Employee meets the
eligibility requirements and other terms, conditions and restrictions of the
respective plans and programs.
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(b) Employee shall be entitled to a total of three (3) weeks
paid vacation and personal days during each year subject to Company's generally
applicable policies. Employee shall give oral or written notice prior to the
commencement of any vacation in excess of five (5) business days. Employee may
carry over from one year to the next up to 35 unused vacation or personal days
during the term of this agreement.
(c) Company will reimburse Employee for all reasonable
expenses incurred by Employee in connection with the performance of Employee's
duties hereunder upon receipt of documentation therefor in accordance with
Company's regular reimbursement procedures and practices in effect from time to
time. Payment to Employee will be made upon presentation of expense vouchers in
such detail as Company may from time to time require.
(d) Company shall provide Employee with a car to be used by
Employee in connection with Employer's business or a car allowance, which in
total cost to Company shall not exceed $1500.00 per month. In the event Company
does provide Employee with a car, Company shall pay for insurance and general
maintenance for such car. Employee may at his option ask to receive a car
allowance of $1,500.00 per month in lieu of a company car.
7. Disability. If Employee suffers a Disability, Company may terminate
Employee's employment relationship with Company at any time thereafter by giving
Employee ten (10) days written notice of termination. Thereafter, Company shall
have no obligation to Employee for Base Compensation, Monthly Bonus, Fringe
Benefits or any other form of compensation or benefit to Employee, except as
otherwise required by law or by benefit plans provided at Company expense, other
than (a) amounts of Base Compensation accrued through the date of termination,
(b) a pro rata portion of the Annual Bonus earned to the date of termination of
employment, to the extent payable hereunder and to the extent approved by the
Board for similarly situated employees, and (c) reimbursement of appropriately
documented expenses incurred by Employee before the termination of employment,
to the extent that Employee would have been entitled to such reimbursement but
for the termination of employment.
8. Death. If Employee dies during the Term of Employment, the Term of
Employment and Employee's employment with Company shall terminate as of the date
of Employee's death. Company shall have no obligation to Employee or Employee's
estate for Base Compensation, Monthly Bonus, Fringe Benefits or any other form
of compensation or benefit, except as otherwise required by law or by benefit
plans provided at Company expense, other than (a) amounts of Base Compensation
that have accrued through the date of Employee's death, (b) a pro rata portion
of the Monthly Bonus earned to the date of Employee's death, to the extent
payable hereunder and to the extent approved by the Board for similarly situated
employees, and (c) reimbursement of appropriately documented expenses incurred
by Employee before Employee's death, to the extent that Employee would have been
entitled to such reimbursement but for his death.
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9. Termination for Cause. Company may terminate Employee's employment
relationship with Company at any time for Cause. Upon termination of Employee
under this Section 9, Company shall have no obligation to Employee for Base
Compensation, Monthly Bonus, Fringe Benefits or other form of compensation or
benefits other than (a) amounts of Base Compensation and Bonus accrued through
the date of termination, and (b) reimbursement of appropriately documented
expenses incurred by Employee before the termination of employment, to the
extent that Employee would have been entitled to such reimbursement but for the
termination of employment.
10. Termination without Cause. Company may terminate Employee's
employment relationship with Company at any time without Cause. Notwithstanding
termination of Employee's employment under this Section 10, Employee shall
receive (a) amounts of Base Compensation and Bonus accrued through the date of
termination, and (b) reimbursement of appropriately documented expenses incurred
by Employee before the termination of employment, to the extent that Employee
would have been entitled to such reimbursement but for the termination of
employment. Additionally, the Employee shall continue to be eligible to receive
and Company shall continue to pay Employee's Base Compensation as well as a
Bonus (based on the Bonus earned by Employee during the preceding twelve (12)
months) for a one (1) year period in accordance with Company's standard payroll
practices.
11. Termination by Employee. Employee may terminate his employment at
any time upon at least 30 days prior written notice to Company. If Employee
terminates his employment, Company shall have no obligation to Employee for Base
Compensation, Monthly Bonus, Fringe Benefits or other form of compensation or
benefits other than (a) amounts of Base Compensation accrued through the date of
termination, and (b) reimbursement of appropriately documented expenses incurred
by Employee before the termination of employment, to the extent that Employee
would have been entitled to such reimbursement but for the termination of
employment. The foregoing notwithstanding, in the event the Employee terminated
his employment due to (i) the Company requiring the Employee to relocate his
office more than fifty (50) miles from his current office in Horsham, Pa, (ii) a
material diminution in the Employee's authority or duties, or (iii) any
reduction in the Employee's Base Salary or Bonus opportunity, then the
termination will be deemed to be a Termination by Company Without Cause and
paragraph 10 of this agreement will determine how Employee will be compensated.
12. Consideration. Employee agrees and acknowledges that Employee is
agreeing to be bound by the terms of this Agreement, including without
limitation the provisions of Sections 13 and 14, in consideration of Company's
agreement to pay in full all amounts due hereunder which consideration Employee
agrees to be adequate consideration for Employee's obligations hereunder.
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13. Company Property. All advertising, sales, manufacturers' and other
materials or articles or information, including without limitation data
processing reports, computer programs, software, customer information and
records, business records, 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 property of Company, including in each case all copies thereof
in any medium, including computer tapes and other forms of information storage.
If Company requests the return of such materials at any time during or at or
after the termination of Employee's employment, Employee shall deliver all
copies of the same to Company immediately. Notwithstanding the foregoing,
Employee may retain records relevant to the filing of Employee's personal income
taxes and Company shall grant Employee reasonable access during normal business
hours, to business records of Company relevant to the discharge of Employee's
duties as an officer of Company or any other legitimate non-competitive business
purpose.
14. Non-Competition, Non-interference, Trade Secrets, Etc. Employee
hereby acknowledges that, during and solely as a result of his employment by
Company, Employee will have access to Confidential Information and business and
professional contacts. In consideration of such special and unique opportunities
afforded by Company to Employee as a result of Employee's employment and the
other benefits referred to in Section 12 of this Agreement, Employee hereby
agrees as follows:
(a) For the duration of the Restricted Period, Employee shall
not directly or indirectly (A) engage in (as a principal, shareholder, partner,
director, officer, agent, employee, consultant or otherwise) or be financially
interested in any business operating within the United States (the "Restricted
Area"), which is involved in or any other business activities which are the same
as, similar to or in competition with the Business at the time of the
termination of Employee's employment; provided however, that nothing contained
in this Section 14 shall prevent Employee from holding for investment no more
than three percent (3%) of any class of equity securities of a company whose
securities are publicly traded on a national securities exchange or in a
national market system; or (B) (i) solicit, divert away, take away or attempt to
solicit or take away any Customer or Potential Customer of Company for the
purpose of providing or selling products or services that are similar to or
competitive with those provided by Company, if Company is then still engaged in
the provision or sale of that type of good or service or in any way cause any
such Customer or Potential Customer of Company to cease doing or reduce the
amount of business it does with Company; or (ii) solicit for employment or in
any other fashion hire, or induce or attempt to influence any employee to
terminate his or her employment with Company.
(b) During the Term of Employment, Employee shall not,
directly or indirectly, disclose or otherwise communicate to any of the clients,
customers or accounts of Company, its Affiliates or any Subsidiary thereof that
he is considering terminating, or has decided to terminate, employment with
Company. Following the termination of Employee's employment, Company shall have
sole discretion to determine who may notify the clients, customers or accounts
of Company of the termination of Employee's employment, and the form, substance
and timing of such notification; provided, however, that Company shall not
disseminate any notice of Employee's termination for any reason other than Cause
which is unfavorable to Employee's professional or personal reputation or
career. Company shall inform Employee of the identity of all persons or entities
to be so notified and provide to Employee a copy of any written notice to such
persons or entities at least ten business days prior to its dissemination to
allow Employee to object to or otherwise challenge the content of the written
notice and/or its dissemination.
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(c) Employee shall not use for Employee's 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
"Confidential Information" which term shall mean any information regarding the
business methods, business policies, policies, procedures, techniques, research
or development projects or results, historical or projected financial
information, budgets, trade secrets, or other knowledge or processes of or
developed by Company or any names and addresses of customers or clients or any
data on or relating to past, present or prospective Company customers or clients
or any other confidential information relating to or dealing with the business
operations or activities of Company as such relate specifically to commercial
collection services, made known to Employee or learned or acquired by Employee
while in the employ of Company, but Confidential Information shall not include
information otherwise lawfully known generally by or readily accessible to the
trade or the general public. All memoranda, notes, lists, records, files,
documents and other papers and other like items (and all copies, extracts and
summaries thereof) made or compiled by Employee or made available to Employee
concerning the business of Company shall be Company's property and shall be
delivered to Company promptly upon the termination of Employee's employment with
Company or at any other time on request. The foregoing provisions of this
Subsection 14(c) shall apply during and after the period when Employee is an
employee of Company and shall be in addition to (and not a limitation of) any
legally applicable protections of Company's interest in confidential
information, trade secrets and the like. At the termination of Employee's
employment with Company, Employee shall return to Company all copies of
Confidential Information in any medium, including computer tapes and other forms
of data storage. Notwithstanding the foregoing, Employee may retain records
relevant to the filing of Employee's personal income taxes and Company shall
grant Employee reasonable access during normal business hours, to business
records of Company relevant to Employee's discharge of Employee's duties as an
officer of Company or other legitimate non-competitive business purpose.
(d) Any and all writings, 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
when Employee is an employee of Company, whether or not during working hours and
whether or not at the request or upon the suggestion of Company, which relate to
or are useful in connection with the Business or with any business now or
hereafter during the time of Employee's employment hereunder carried on or known
by Employee to be 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
otherwise 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.
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(e) Employee acknowledges that the restrictions contained in
the foregoing Subsections (a), (b), (c) and (d), 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, that their enforcement will not
impose a hardship on Employee or significantly impair Employee's ability to earn
a livelihood, and that any violation thereof would result in irreparable
injuries to Company. Employee therefore acknowledges that, in the event of
Employee's 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.
(f) If the Restricted Period or the Restricted Area specified
in Subsections (a) and (b) above should be adjudged unreasonable in any
proceeding, then the period of time shall be reduced by such amount or the area
shall be reduced by the elimination of such portion or both such reductions
shall be made so that such restrictions may be enforced for such time and in
such area as is adjudged to be reasonable. If Employee violates any of the
restrictions contained in the foregoing Subsections (a) or (b), the Restricted
Period shall be extended by a period equal to the length of time from the
commencement of any such violation until such time as such violation shall be
cured by Employee to the satisfaction of Company. Company shall have the right
and remedy to require Employee to account for and pay over to Company all
compensation, profits, monies, accruals, increments or other benefits derived or
received by Employee as the result of any transactions constituting a breach of
this Section 14, and Employee shall account for and pay over such amounts to
Company upon Company's request therefor. Employee hereby expressly consents to
the jurisdiction of any court within the Commonwealth of Pennsylvania to enforce
the provisions of this Section 14, and agrees to accept service of process by
mail relating to any such proceeding. Company may supply a copy of Section 14 of
this Agreement to any future or prospective employer of Employee or to any
person to whom Employee has supplied information if Company determines in good
faith that there is a reasonable likelihood that Employee has violated or will
violate such Section.
15. Consent to Jurisdiction/Arbitration.
(a) Any legal suit, action, claim, proceeding or investigation
arising out of or relating to this Agreement may be instituted in the Xxxxxxxxxx
County Court of Common Pleas of the Commonwealth of Pennsylvania, and each of
the parties hereto waives any objection which party may now or hereafter have to
such venue of any such suit, action, claim, proceeding or investigation, and
irrevocably submits to the jurisdiction of any such court. Any and all service
of process and any other notice in any such suit, action, claim, proceeding or
investigation shall be effective against any party if given by registered or
certified mail, return receipt requested, or by any other means of mail which
requires a signed receipt, postage prepaid, mailed to such party as herein
provided. Nothing herein contained shall be deemed to affect the right of any
party to serve process in any manner permitted by law or to commence legal
proceedings or otherwise proceed against any other party in any jurisdiction
other than Pennsylvania.
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(b) With the exception of Company's right to injunctive or
equitable relief described in paragraph 14(e) above, any dispute, controversy or
claim arising out of or relating to this Agreement or the breach or alleged
breach of this Agreement shall be settled by arbitration in Xxxxxxxxxx County,
Pennsylvania in accordance with the commercial arbitration rules, then
obtaining, of the American Arbitration Association, and judgment upon any such
arbitration award rendered by the arbitrators may be entered in any state or
federal court sitting in Pennsylvania. If the parties to any such dispute,
controversy or claim are unable to agree upon an arbitrator or arbitrators, then
three arbitrators shall be appointed by the American Arbitration Association, as
it may determine, in accordance with the commercial arbitration rules and
practices, then obtaining, of such Association. If the parties to any such
dispute, controversy or claim shall agree upon two arbitrators, but such parties
or such arbitrators shall be unable to agree upon a third arbitrator, then only
such third arbitrator shall be appointed as aforesaid by the American
Arbitration Association. Each of the parties and the arbitrators shall use its
best efforts to keep confidential the existence of any dispute and arbitration
proceedings and all information relating thereto or submitted in connection
therewith and, in the event of judicial proceedings for the enforcement of this
paragraph or any award pursuant thereto, shall cooperate to seal the record of
any such arbitration or judicial proceedings.
(c) In the event judicial proceedings or arbitration
proceedings are commenced, the prevailing party shall be entitled to an award
for its reasonable legal fees and costs incurred in relation to such
proceedings.
16. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the
part of either party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
(b) Controlling Law. This Agreement and all questions relating
to its 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,
notwithstanding any conflict-of-laws doctrines of such jurisdiction to the
contrary, and without the aid of any canon, custom or rule of law requiring
construction against the draftsman.
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(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
personally delivered, on the day specified for delivery when deposited with a
recognized national or regional courier service for delivery to the intended
addressee or five (5) days following the day when deposited in the United States
mails, first class postage prepaid, addressed as set forth below:
If to Employee:
Xxxx X. Xxxxxxx
[intentionally left blank]
If to Company:
Xxxxxxx X. Xxxxxxx, President and Chief Executive Officer
NCO Group, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
with a copy, given in the manner prescribed above, to:
Xxxxxx Xxxxxx
Executive Vice-President and General Counsel
NCO Group, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
In addition, notice by mail shall be by air mail if posted outside of
the continental United States. Any party may alter the address to which
communications or copies are to be sent by giving notice of such change of
address in conformity with the provisions of this Section for the giving of
notice.
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(d) Binding Nature of Agreement. This Agreement shall be
binding upon Company and shall inure to the benefit of Company, its present and
future Subsidiaries, Affiliates, successors and assigns including any transferee
of the business operation, as a going concern, in which Employee is employed and
shall be binding upon Employee, Employee's heirs and personal representatives.
None of the rights or obligations of Employee hereunder may be assigned or
delegated, except that in the event of Employee's death or Disability, any
rights of Employee hereunder shall be transferred to Employee's estate or
personal representative, as the case may be. Company may assign its rights and
obligations under this Agreement in whole or in part to any one or more
Affiliates or successors, but no such assignment shall relieve Company of its
obligations to Employee if any such assignee fails to perform such obligations.
(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. This Agreement shall become
binding when such number of counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
(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) Prior Agreements. Employee represents to Company that
except as he otherwise previously disclosed to Company, there are no
restrictions, agreements or understandings, oral or written, to which Employee
is a party or by which Employee is bound that prevent or make unlawful
Employee's execution or performance of this Agreement.
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(h) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the employment of
Employee by Company, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. 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. Notwithstanding the foregoing, nothing herein shall limit
the application of any generally applicable Company policy, practice, plan or
the terms of any manual or handbook applicable to Company's employees generally,
except to the extent the foregoing directly conflict with this Agreement, in
which case the terms of this Agreement shall prevail.
(i) Section Headings. The Section headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
(j) Number of Days. Except as otherwise provided herein, 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.
(k) Gender, Etc. Words used herein, regardless of the number
and gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(l) Survival. All provisions of this Agreement which by their
terms survive the termination of Employee's employment with Company, including
without limitation the covenants of Employee set forth in Sections 13 and 14 and
the obligations of Company to make any post-termination payments under this
Agreement, shall survive termination of Employee's employment by Company and
shall remain in full force and effect thereafter in accordance with their terms.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first above written.
NCO FINANCIAL SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
/s/ Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx
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EXHIBIT "A"
EMPLOYMENT AGREEMENT OF XXXX X. XXXXXXX
COMPENSATION SCHEDULE
A. Base Salary: The Employee shall, during the Term, be paid an annual
base salary (the "Base Salary") Two Hundred Seventy Five Thousand
Dollars ($275,000). The Base Salary shall be payable in installments,
in arrears, in accordance with the Company's regular payroll practices,
but not less often than monthly. Employee's Base Salary shall be
adjusted annually, commencing January 1, 2004 by not less than the
prevailing Consumer Price Index ("CPI") for the Philadelphia,
Pennsylvania area.
B. Annual Bonus: In addition to the Base Salary, so long as Employee
satisfies the duties and obligations of his employment, including
meeting individual annual goals and objectives, Employee shall be
entitled to receive an Annual Bonus determined in a fair and equitable
method consistent among similarly situated executive officers of the
Company. Employee's Annual Bonus shall be in an amount up to one
hundred percent (100%) of the Base Salary. The Annual Bonus shall be
paid out of and may be increased or reduced based on a Bonus Pool of
funds established by the Company's compensation committee based on the
Company's economic performance during a given year in accordance with
the following table:
Results/Plan Incentive as a Percent of Target
--------------------------- --------------------------------------------
Less than 90% 0
90% 20%
91% to 100% +8% for each point above 90
100% 100%
100% to 120% +5% for each point from 100 to 120
120% and above 200%
During the year 2003, Employee's Annual Bonus shall be not
less than $137,500, provided that Company's 2003 minimum obligation hereunder
shall be reduced by any bonus amount that Employee receives from his previous
employer.
C. Stock Option Plan: As additional compensation, Employee shall receive
an option to purchase up to 75,000 shares of the common stock of NCO
Group, Inc., parent company of Company, at the closing per share price
on the date hereof. The options shall be subject to the terms and
conditions of the Company's Stock Option Plan as such is or may be
amended from time to time.
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