EXHIBIT 10.15
EMPLOYMENT AGREEMENT
BY AND BETWEEN
IMPACT TELEMARKETING GROUP, INC.
AND
Xxxxxx X. XxXxxx
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of __________________, 1997, by and between Impact Telemarketing Group, Inc.,
a New Jersey corporation (the "Company"), and Xxxxxx X. XxXxxx ("Employee").
PRELIMINARY RECITALS
A. Reference is made to that certain Stock Purchase Agreement dated
as of ___________________, 1997 (the "Purchase Agreement"), by and among the
Company, Impact Telemarketing, Inc. ("IT"), Compass International Services
Corporation, a Delaware corporation ("Compass"), and the Stockholders of the
Company and IT identified on Schedule A to the Purchase Agreement, providing for
the purchase by Compass of all of the issued and outstanding stock of the
Company and IT.
B. The Company and IT provide outbound and inbound telemarketing
services to national and regional companies throughout the United States (the
"Business").
C. Employee has been a substantial owner of the Company and IT since
their inception, and has extensive knowledge and a unique understanding of the
Business and has developed longstanding business relationships with customers
and other business constituencies who are involved in the Business of the
Company and IT.
D. The Company desires to employ Employee, and Employee desires to be
employed by the Company, all under the terms and conditions set forth herein.
E. It is a condition to the consummation of the Purchase Agreement
that the Company and Employee enter into this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
of the parties hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Employment.
1.1 Engagement of Employee. The Company agrees to employ Employee
as President and Chief Executive Officer ("CEO") of the Company and
Employee agrees to accept such employment, all in accordance with the
terms and conditions of this Agreement.
1.2 Duties and Powers. At all times during the Employment Period
(as defined herein), Employee will serve as the Company's President
and CEO and will have such responsibilities, duties and authority, and
will render such services for the Company and its affiliates, as the
Board of Directors of Compass (the "Board") shall from time to time
reasonably direct; provided, however, that such duties and
responsibilities, duties,
authority and services shall be commensurate with the position of
President and CEO of the Company. Employee agrees diligently and
faithfully to serve the Company and to devote Employee's best efforts,
highest talents and skills and full time and attention to the
furtherance and success of the Business.
1.3 Employment Period. Employee's employment under this Agreement
shall be for a period of five years beginning as of the date of this
Agreement (the "Initial Employment Period"). This Agreement shall
automatically renew for successive one-year periods (each one-year
period shall be referred to herein as a "Renewal Period") unless
either the Company or Employee, as the case may be, provides written
notice to the other party at least ninety (90) days prior to the
termination of any such period, stating its/his desire to terminate
this Agreement. The Initial Employment Period and each successive
Renewal Period shall be referred to herein together as the "Employment
Period". Notwithstanding anything to the contrary contained herein,
the Employment Period is subject to termination pursuant to Section
1.5 below.
1.4 Place of Employment. Employee's services hereunder shall be
rendered at such locations in the greater Philadelphia metropolitan
area as shall be determined by the Board, subject to such travel as
may be reasonably required in connection with the Business. Employee
shall not be required to relocate to any other area without his
consent.
1.5 Termination of Employment for Cause, Death or Disability. The
Company has the right to terminate Employee's employment under this
Agreement, by notice to Employee in writing at any time, for Cause (as
hereinafter defined), and such employment shall automatically be
terminated upon the death or the Disability (as hereinafter defined)
of Employee. Any such termination shall be effective upon the date of
service of such notice pursuant to Section 6.7 hereof, in the case of
termination for Cause, or immediately upon the death or Disability of
Employee, and the Employment Period shall terminate as of the
effective date of such termination.
"Cause," as used herein, means the occurrence of any of the
following events:
(i) final non-appealable conviction of (A) a felony or (B)
any crime involving moral turpitude;
(ii) the willful failure of Employee to comply with
reasonable and lawful directions of the Board after (A) written
notice is delivered to Employee describing such willful failure
and (B) Employee has failed to cure or take substantial steps to
cure such willful failure after a reasonable time period, as
determined by the Board in its reasonable discretion (not to be
less than 60 days);
(iii) the good faith determination by the Board in the
exercise of its reasonable judgment that Employee has committed
an act or acts in the course of his employment constituting fraud
or misappropriation of material Company property;
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(iv) a material breach by Employee of any of the terms,
conditions or covenants set forth in Section 3 of this Agreement;
or
(v) a material breach by Employee of any of the terms or
conditions of this Agreement if (A) written notice is delivered
to Employee describing such breach and (B) Employee has failed to
cure or take substantial steps to cure such breach after a
reasonable time period, as determined by the Board in its
reasonable discretion (not to be less than 60 days).
Employee shall be deemed to have a "Disability" for purposes of
this Agreement if he is unable to perform, by reason of physical or
mental incapacity, his material duties or obligations under this
Agreement, with or without reasonable accommodation, for a total
period of 120 days in any 360-day period. The Board shall determine,
according to the facts then available, whether and when the Disability
of the Employee has occurred. Such determination shall not be
arbitrary or unreasonable and the Board will, if available, take into
consideration the expert medical opinion of a physician mutually
agreed upon by Employee and the Company, after such physician has
completed an examination of Employee. Employee agrees to make
reasonable efforts to make himself available for such examination upon
the reasonable request of the Company.
2. Compensation and Benefits.
2.1 Salary. In consideration of Employee performing his duties
under this Agreement during the Employment Period, the Company will
pay Employee a base salary at a rate of $110,000 per annum (the "Base
Salary"), payable in accordance with the Company's regular payroll
policy for salaried employees. The Base Salary may be increased (but
not decreased), from time to time during the Employment Period, as
determined by the Compensation Committee of the Board (the
"Compensation Committee"), in its sole discretion, and in any event
will be increased on January 1 of each year beginning January 1, 1999
to reflect corresponding increases in the United States Department of
Labor, Bureau of Labor Statistics, Consumer Price Index, All Urban
Consumers, United States City Average, all items (1982-88=100). If
warranted by the growth of the Business, in the sole judgment of the
Compensation Committee, the Base Salary will be increased as of
January 1, 1999 to the level of the Base Salary of the other CEO's of
the Founding Companies (as defined in the Purchase Agreement). If the
Employment Period is terminated pursuant to Section 1.5 above or for
any other reason, then the Base Salary for any partial year will be
prorated based on the number of days elapsed in such year during which
services were actually performed by Employee, and all such prorated
Base Salary which remains unpaid, together with accrued but unused
vacation and sick pay, if any, shall be paid by the Company to
Employee within five days after the effective date of termination of
the Employment Period.
2.2 Bonus. Employee shall participate in Compass' Executive
Compensation Program (the "Bonus Program"), under which Employee shall
be eligible to earn an annual bonus of up to 100% of Employee's Base
Salary based upon such factors as (i) the financial performance of the
Company, (ii) the financial performance of Compass, and/or (iii) the
achievement of personal performance goals. The criteria and/or goals
for
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the Bonus Program shall be established by the Compensation Committee
at the beginning of each fiscal year after consultation with Employee.
All bonuses awarded to Employee hereunder shall be payable in
accordance with Company policy. If the Employment Period is terminated
pursuant to Section 1.5 above then the foregoing bonus for any partial
year will be determined based on annualizing results to the date of
the termination and will be prorated based upon the number of days
elapsed in such year during which services were actually performed by
Employee, and shall be paid within five days of the effective date of
such termination of the Employment Period.
2.3 Compensation After Termination of Employment.
(a) If the Company shall terminate Employee's employment
during the Employment Period for any reason (other than for Cause
pursuant to Section 1.5 of this Agreement), or if Employee shall
voluntarily terminate his employment during the Employment Period
and within 60 days after a Constructive Termination (as defined
below), Employee shall be entitled to receive severance
compensation equal to (A) the amount of his Base Salary for a
period of two years commencing on the last day of the Employment
Period (the "Severance Period"), (B) (i) if permitted under
Company's group health insurance coverage, continuation at the
cost of Company of coverage thereunder for Employee and, if
dependent coverage is then in effect, his covered dependents
(subject to such changes in coverage as shall apply to Company's
employees generally and provided that if the cost of dependent
coverage prior to termination of employment was being paid by
Employee, such cost shall continue to be payable by Employee) or
(ii) if not so permitted, reimbursement by the Company of the
premiums for group health insurance coverage otherwise payable by
Employee under COBRA, until the end of the Severance Period or
until other employment is obtained, whichever occurs first, and
(C) his pro rated bonus, as determined by the Compensation
Committee in its good faith judgement, for the period of any
partial fiscal year immediately preceding the termination date in
accordance with Section 2.2. above ((A), (B) and (C)
collectively, the "Severance Benefits"). The Severance Benefits
payable under (A) and (B)(ii) above shall be paid in equal
installments on the Company's normal payroll payment dates
occurring during the first 60 days of the Severance Period. The
Severance Benefits payable under (C) above shall be paid in a
lump sum in accordance with Section 2.2 above. It shall be a
condition to Employee's right to receive the Severance Benefits
that (i) Employee shall execute and deliver to the Company a
written separation agreement, in form and substance reasonably
satisfactory to the Company (but not inconsistent with this
Agreement), which agreement shall, among other things, contain a
general release by Employee of all claims arising out of
Employee's employment or termination of employment (but excluding
claims for indemnification for third party claims pursuant to the
Company's articles of incorporation and/or bylaw), and (ii)
Employee shall be in compliance with all of Employee's
obligations which expressly survive termination hereof, including
without limitation those arising under Sections 3 and 4 hereof.
In addition, the Company may, as a condition to such Severance
Benefits, require that Employee provide consulting services to
the Company on a reasonable basis during the first
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60 days of the Severance Period, provided that the timing of such
consulting services shall not unreasonably interfere with
Employee's ability to obtain other full-time employment. The
Severance Benefits are intended to be in lieu of all other
payments to which Employee might otherwise be entitled in respect
of termination of Employee's employment without Cause (except for
the payments required under Section 2.1). Except as expressly
provided above, no fringe or other employee benefits shall be
payable during or after the Severance Period.
(b) If Employee's employment shall be terminated pursuant to
Section 1.5, the Company shall have no further obligations
hereunder or otherwise with respect to Employee's employment from
and after the effective date of the termination of the Employment
Period (except for the payments required under Section 2.1), and
the Company shall continue to have all other rights available
hereunder (including, without limitation, all rights under
Sections 3 and 4 hereof at law or in equity).
(c) For the avoidance of doubt, Severance Benefits shall not
be payable if Employee's employment is terminated by reason of
his death or Disability, but shall continue to be payable during
the Severance Period if his employment is terminated without
Cause or by reason of Constructive Termination and he
subsequently dies or becomes disabled.
(d) "Constructive Termination" as used herein, shall be
deemed to have occurred if the Company (i) demotes Employee to a
position below that of President and CEO of the Company or
assigns the Employee duties and responsibilities that are not
commensurate with such position, (ii) reduces Employee's Base
Salary or materially reduces his employee benefits and
prerequisites, taken in the aggregate, or (ii) requires Employee
to relocate in violation of Section 1.4.
2.4 Benefits, Expenses and Pension Plan. During the Employment
Period, the Company agrees to provide to Employee such fringe and
other employee benefits as are generally provided, from time to time,
to senior officers of the subsidiaries of Compass (upon no less
favorable terms as provided to such officers), including without
limitation, vacation, health and insurance benefits, and the
opportunity to participate in the Compass Stock Option Plan and
Compass Stock Purchase Plan. The Company shall retain the right to
discontinue or modify any employee benefit program at any time. The
Company will reimburse Employee in accordance with Company policy for
his normal out-of-pocket expenses incurred in the course of performing
his duties hereunder.
3. Covenants.
3.1 Employee's Acknowledgment. Employee acknowledges that:
(i) the Company is and will be engaged in the Business
during the Employment Period and thereafter;
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(ii) Employee is one of a limited number of persons who will
manage the Business;
(iii) Employee will occupy a position of trust and
confidence with the Company after the date of this Agreement, and
during the Employment Period and Employee's employment under this
Agreement, Employee will become familiar with the Company's
proprietary and confidential information concerning the Company
and the Business;
(iv) the agreements and covenants contained in this Section
3 are essential to protect the Company and the goodwill of the
Business and are a condition precedent to the Company's entering
into this Agreement;
(v) Employee's employment with the Company has special,
unique and extraordinary value to the Company and the Company
would be irreparably damaged if Employee were to provide services
to any person or entity in violation of the provisions of this
Agreement; and
(vi) Employee has means to support himself and his
dependents other than by engaging in the Business, or a business
substantially similar to the Business, and the provisions of this
Section 3 will not impair such ability.
3.2 Non-Compete. Employee hereby agrees that during the
Employment Period and through the period ending with the second
anniversary of the last day of the Employment Period (collectively,
the "Restrictive Period"), he shall not, for any reason whatsoever,
directly or indirectly, whether individually or as an officer,
director, shareholder, owner, partner, joint venturer, employee,
independent contractor, consultant or advisor to or of any entity, or
in any other capacity:
(i) engage, participate or invest in any business which is
competitive with the Business anywhere in the United States of
America (the "Territory"); provided, however, that nothing
contained herein shall be construed to prevent Employee from
investing in up to 5% of the outstanding stock of any competing
corporation that is publicly-traded and listed on a recognized
national, international or regional securities exchange or traded
in the U.S. over-the-counter market, but only if Employee is not
actively involved in and does not render consulting services to
the business of said corporation,
(ii) sell or provide any competitive products or services
to, or solicit for the purpose of selling or providing any
competitive products or services to, any person or entity that
was a customer of the Company at any time during the one-year
period ending on the last day of the Employment Period (the
"Termination Date") or that was known by Employee to have been
actively being solicited by the Company to become a customer of
the Company at any time during such period,
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(iii) solicit for employment or engagement, or influence or
induce to leave the Company's employment, or knowingly cause to
be employed or engaged, any person who is employed or engaged by
the Company in a managerial capacity on the Termination Date or
during the Restrictive Period, unless such person has been out of
the employ of the Company for at least 180 days; provided, that
the Employee shall be permitted to solicit and hire any member of
his immediate family, or
(iv) enter into, or call upon or request non-public
information for the purpose of entering into, an Acquisition
Transaction with any entity with respect to which Company has
made an offer or proposal for, or entered into discussions or
negotiations for, or evaluated with the intent of making a
proposal for, an Acquisition Transaction, within the six-month
period immediately preceding the Termination Date.
For purposes of this Agreement, an "Acquisition Transaction"
means a merger, consolidation, purchase of material assets, purchase
of a material equity interest, tender offer, recapitalization,
accumulation of shares, proxy solicitation or other business
combination.
3.3 Intellectual Property Rights. Employee will promptly
communicate, disclose and transfer to the Company free of all
encumbrances and restrictions (and will execute and deliver any papers
and take any reasonable action at any time deemed reasonably necessary
by the Company to further establish such transfer) all of Employee's
right, title and interest in and to all ideas, discoveries, inventions
and improvements relating to the Business created, originated,
developed or conceived of by Employee solely or jointly with others
during the term of Employee's employment hereunder, whether or not
during normal working hours. Employee agrees that all right, title and
interest in and to all such ideas, discoveries, inventions and
improvements shall belong solely to the Company, whether or not they
are protected or protectible under applicable patent, trademark,
service xxxx, copyright or trade secret laws. Employee agrees that all
work or other material containing or reflecting any such ideas,
discoveries, inventions or improvements shall be deemed work made for
hire as defined in Section 101 of the Copyright Act, 15 U.S.C.(S)101.
Such transfer shall include all patent rights, copyrights, trademark
and service xxxx rights, and trade secret rights (if any) to such
ideas, discoveries, inventions and improvements in the United States
and in all other countries. Employee further agrees, at the expense of
the Company, to take all such reasonable actions and to execute and
deliver all such assignments and other lawful papers relating to any
aspect of the prosecution of such rights in the United States and all
other countries as the Company may request at any time during the
Employment Period or after termination thereof.
3.4 Interference with Relationships. Other than in the
performance of his duties hereunder, during the Restrictive Period,
Employee shall not, directly or indirectly, as employee, agent,
consultant, stockholder, director, partner or in any other individual
or representative capacity, solicit or intentionally encourage any
present or
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future customer, supplier or other third party to terminate or
otherwise alter his, her or its relationship with the Company.
3.5 Confidential Information. Other than in the performance of
his duties hereunder, during the Restrictive Period and thereafter,
Employee shall keep secret and retain in strictest confidence, and
shall not, without the prior written consent of the Company, directly
or indirectly furnish, make available or disclose to any third party
or use for the benefit of himself or any third party, any Confidential
Information. As used in this Agreement, "Confidential Information"
shall mean any information relating to the business or affairs of the
Company or the Business, including, but not limited to, information
relating to financial statements, employees, customers, suppliers,
pricing, marketing, equipment, programs, strategies, analyses, profit
margins, or other proprietary information of or used by Compass, the
Company or any other subsidiary of Compass in connection with the
Business; provided, however, that Confidential Information shall not
include any information which is in the public domain or becomes known
in the industry through no wrongful act on the part of Employee.
Employee acknowledges that the Confidential Information is vital,
sensitive, confidential and proprietary to the Company and Compass.
3.6 Blue-Pencil. If any court of competent jurisdiction shall at
any time deem the Restrictive Period too lengthy or the Territory too
extensive, the other provisions of this Section 3 shall nevertheless
stand, the Restrictive Period herein shall be deemed to be the longest
period permissible by law under the circumstances and the Territory
herein shall be deemed to comprise the largest territory permissible
by law under the circumstances. The court in each case shall reduce
the time period and/or territory to permissible duration or size.
3.7 Return of Company Materials Upon Termination. Employee
acknowledges that all price lists, sales manuals, catalogs, binders,
customer lists and other customer information, supplier lists and
other supplier information, financial information, memoranda,
correspondence and other records or documents including information
stored on computer disks or in computer readable form, containing
Confidential Information prepared by Employee or coming into
Employee's possession by virtue of Employee's employment by the
Company is and shall remain the property of the Company and that upon
termination of Employee's employment hereunder, Employee shall return
immediately to the Company all such items, together with all copies
thereof, in Employee's possession.
3.8 Remedies. Employee acknowledges and agrees that the covenants
set forth in this Section 3 (collectively, the "Restrictive
Covenants") are reasonable and necessary for the protection of the
Company's business interests, that irreparable injury will result to
the Company if Employee breaches any of the terms of said Restrictive
Covenants, and that in the event Employee breaches or threatens to
breach any such Restrictive Covenants, the Company will have no
adequate remedy at law. Employee accordingly agrees that in the event
Employee breaches or threatens to breach any of the Restrictive
Covenants, the Company shall be entitled to immediate temporary
injunctive and other equitable relief, without the necessity of
showing actual monetary damages.
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Nothing contained herein shall be construed as prohibiting the Company
from pursuing any other remedies available to it for such breach or
the threat of such a breach by Employee, including the recovery of any
damages which it is able to prove.
3.9 Company. For purposes of this Section 3, the term "Company"
shall include the Company and its respective subsidiaries, affiliates,
permitted assignees and any permitted successors in interest of the
Company or its subsidiaries or affiliates.
4. Effect of Termination. If Employee or the Company should terminate
Employee's employment for any reason, then, notwithstanding such termination,
those provisions contained in Sections 2.3, 3, 4, 5 and 6 hereof shall remain in
full force and effect.
5. Income Tax Treatment. Employee and the Company acknowledge that it
is the intention of the Company to deduct all amounts paid under Section 2
hereof as ordinary and necessary business expenses for income tax purposes.
Employee agrees and represents that he will treat all such amounts as required
pursuant to all applicable tax laws and regulations.
6. Miscellaneous.
6.1 Life Insurance. The Company may at its discretion and at any
time apply for and procure as owner and for its own benefit and at its
own expense, insurance on the life of Employee in such amounts and in
such form or forms as the Company may choose. Employee shall cooperate
with the Company in procuring such insurance and shall, at the request
of the Company, submit to such medical examinations, supply such
information and execute such documents as may be reasonably and
customarily required by the insurance company or companies to whom the
Company has applied for such insurance. Employee shall have no
interest whatsoever in any such policy or policies, except that, upon
the termination of Employee's employment hereunder, Employee may
purchase any and all such insurance from the Company for an amount
equal to the actual premiums thereon previously paid by the Company.
6.2 Assignment. No party hereto may assign or delegate any of its
rights or obligations hereunder without the prior written consent of
the other party hereto; provided, however, that the Company shall have
the right to assign all or any part of its rights and obligations
under this Agreement upon written notice to Employee (i) to any
affiliate of the Company to which the Business of the Company is
assigned at any time (provided that the Company and Compass shall
remain liable for all obligations of Company hereunder) or any
surviving entity following any merger or consolidation of the Company
and any other entity or (ii) in connection with the sale of the
Business by the Company. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto shall bind and inure to the
benefit of the respective legal representatives, heirs, permitted
successors and assigns of the parties hereto whether so expressed or
not.
6.3 Entire Agreement. Except as otherwise expressly set forth
herein, this Agreement sets forth the entire understanding of the
parties, and supersedes and preempts
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all prior oral or written understandings and agreements, with respect
to the subject matter hereof.
6.4 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement is
held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of this Agreement.
6.5 Amendment; Modification. No amendment or modification of this
Agreement and no waiver by any party of the breach of any covenant
contained herein shall be binding unless executed in writing by the
party against whom enforcement of such amendment, modification or
waiver is sought. No waiver shall be deemed a continuing waiver or a
waiver in respect of any subsequent breach or default, either of a
similar or different nature, unless expressly so stated in writing.
6.6 Governing Law. This Agreement shall be construed and enforced
in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Agreement shall be
governed by, the laws of the State of New Jersey, without giving
effect to provisions thereof regarding conflict of laws.
6.7 Notices. All notices, demands or other communications to be
given or delivered hereunder or by reason of the provisions of this
Agreement shall be in writing and shall be deemed to have been
properly served if (a) delivered personally, (b) delivered by a
nationally recognized overnight courier service, (c) sent by certified
or registered mail, return receipt requested and first class postage
prepaid, or (d) sent by facsimile transmission followed by a
confirmation copy delivered by a nationally recognized overnight
courier service the next day. Such notices, demands and other
communications shall be sent to the addresses indicated below:
(a) If to Employee:
Xx. Xxxxxx X. XxXxxx
c/o Impact Telemarketing Group, Inc.
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
with a copy to:
Xxxxxx Xxxxx
0000 Xxxxx Xxxx, Xxxxx X
X.X. Xxx 0000
Xxxxxx Xxxx, XX 00000-0000
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(b) If to the Company:
Impact Telemarketing Group, Inc.
c/o Compass International Services Corporation
0 Xxxxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: President
with a copy to:
Compass International Services Corporation
0 Xxxxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: President
with a copy to:
Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
or to such other address or facsimile number or to the attention
of such other person or entity as the recipient party has
specified by prior written notice to the sending party. Date of
service of such notice shall be (i) the date such notice is
personally delivered or sent by facsimile transmission (with
issuance by the transmitting machine of a confirmation of
successful transmission), (ii) five business days after the date
of mailing if sent by certified or registered mail or (iii) one
business day after date of delivery to the overnight courier if
sent by overnight courier.
6.8 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same Agreement.
6.9 Descriptive Headings; Interpretation. The descriptive
headings in this Agreement are inserted for convenience of reference
only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement. The use of the word "including" in
this Agreement shall be by way of example rather than by limitation.
The Preliminary Recitals set forth above are incorporated by reference
into this Agreement.
6.10 No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties hereto to
express their mutual interest, and no rule of strict construction will
be applied against any party hereto.
6.11 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, the making, interpretation or the breach
thereof, other than a claim solely for injunctive relief for any
alleged breach of the provisions of Section 3 as to which the parties
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shall have the right to apply for relief in any court of competent
jurisdiction, shall be resolved by arbitration in Philadelphia,
Pennsylvania, in accordance with the Federal Arbitration Act and the
National Rules for the Resolution of Employment Disputes of the
American Arbitration Association. Judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction
thereof and any party to the arbitration may, if such party so elects,
institute proceedings in any court having jurisdiction for the
specific performance of any such award. Without limiting the
generality of the foregoing sentence, the claims to which this
provision shall apply include, but are not limited to: (i) any claims
arising out of or related to this Employment Agreement or breach
thereof; (ii) any claims arising under any federal, state, or local
statute or the common law of any state, regarding compensation or
employee benefits, or discrimination, retaliation, harassment, or
denial of equal employment opportunity based on sex, race, color,
religion, national origin, disability, age, marital status, or any
other category protected by law; (iii) any claims arising under the
common law of the United States or any state relating to Employee's
employment with Company, including without limitation claims alleging
negligence, defamation, public policy, tort, infliction of emotional
distress, fraud, or misrepresentation; or (iv) any civil claims that
Company may have against Employee relating to Employee's employment
with Company. Anything herein to the contrary notwithstanding, this
Section 6.11 shall not apply to: (i) any claim by Employee for workers
compensation benefits or unemployment compensation benefits; or (ii)
any claim by Company for injunctive or equitable relief, including
without limitation claims related to the enforcement of Section 3
hereof, which may be brought in any court of competent jurisdiction.
Employee and Company expressly waive any right to resolve any dispute
covered by this Section by filing suit in court for trial by a judge
or jury. The arbitrator shall include in any award in the prevailing
party's favor costs and expenses of the arbitration. In the event the
arbitrator does not rule in favor of the prevailing party in respect
of all the claims alleged by such party, the arbitrator shall include
in any award in favor of the prevailing party the amount of his or its
reasonable costs and expenses of the arbitration as he deems just and
equitable under the circumstances. Except as provided above, each
party to the arbitration shall bear his or its own attorney's fees and
expenses and the parties shall bear equally all other costs and
expenses of the arbitration.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COMPANY:
IMPACT TELEMARKETING GROUP, INC.
By:
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Its:
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EMPLOYEE:
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Xxxxxx X. XxXxxx
For good and valuable consideration, the receipt of which is hereby
acknowledged, the undersigned hereby unconditionally guarantees the payment and
performance of the obligations of the Company hereunder.
COMPASS INTERNATIONAL SERVICES CORPORATION
By:
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Its:
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