Exhibit 10.11
CONSULTING AGREEMENT
This Agreement is made as of the 13th day of August, 1996 between
Payco American Corporation, a Wisconsin corporation, with offices at 000 Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000-0000 (the "Company"), and Xxxxxx X.
Punches, an individual residing in the State of Florida (the "Consultant").
R E C I T A L S
WHEREAS, the Consultant is a founder and long-time employee of the
Company and is presently serving as Chairman of the Board of Directors of the
Company;
WHEREAS, during the term of his employment with the Company, the
Consultant has actively established and maintained relationships with the
Company's key customers and strategic partners;
WHEREAS, the Consultant possesses an intimate knowledge of the
business and affairs of the Company and its policies, procedures, methods and
personnel;
WHEREAS, OSI Holdings Corp., Boxer Acquisition Corp. and the Company
have executed and delivered an Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement");
WHEREAS, the Company desires to secure the continued services of the
Consultant on behalf of the Company after consummation of the transactions
contemplated by the Merger Agreement, and the Consultant desires to continue
providing such services to the Company, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. Engagement, Duties. The Company hereby engages the Consultant to
provide such advisory and consulting services to the Company as shall be
mutually agreed between the Consultant and the Company from time to
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time, and the Consultant accepts such engagement for the term specified in
Section 2 below (the "Term").
2. Effectiveness; Term. The Term shall begin at the Effective Time (as
defined in the Merger Agreement) and continue until the third anniversary date
of the Effective Time, unless earlier terminated by either party with thirty
days notice to the other.
3. Fee. The Company shall pay to the Consultant $150,000 on the third
anniversary date of the Effective Time.
4. Expenses. The Consultant shall be reimbursed by the Company for all
reasonable expenses incurred by him in connection with the performance of his
duties hereunder in accordance with Company policy and upon receipt of
appropriate documentation.
5. Independent Contractor. It is the express intention of the parties
that Consultant is an independent contractor and not an employee, agent, joint
venturer or partner of the Company. Nothing in this contract shall be
interpreted or construed as creating or establishing a relationship of employer
and employee between the Company and Consultant or any employee or agent of
Consultant.
6. Secret Processes and Confidential Information. For the Term and
thereafter, (a) the Consultant will not divulge, transmit or otherwise disclose
(except as legally compelled by court order, and then only to the extent
required, after prompt notice to the Company of any such order), directly or
indirectly, other than in the regular and proper course of business of the
Company, any confidential knowledge or information with respect to the
operations or finances of the Company or with respect to confidential or secret
processes, services, techniques, customers or plans with respect to the Company
and (b) the Consultant will not use, directly or indirectly, any confidential
information for the benefit of anyone other than the Company; provided, however,
that the Consultant has no obligation, express or implied, to refrain from using
or disclosing to others any such knowledge or information which is or hereafter
shall become available to the public other than through disclosure by the
Consultant. All new processes, techniques, know-how, inventions, plans,
products, patents and devices developed, made or invented by the Consultant,
alone or with others, while a consultant of the Company, shall be and become the
sole property of the Company, unless released in writing by
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the Company, and the Consultant hereby assigns any and all rights therein or
thereto to the Company.
During the term of this Agreement and thereafter, the Consultant shall
not take any action to disparage or criticize to any third parties any of the
services of the Company or to commit any other action that injures or hinders
the business relationships of the Company.
All files, records, documents, memorandums, notes or other documents
relating to the business of Company, whether prepared by the Consultant or
otherwise coming into his possession in the course of the performance of his
services under this Agreement, shall be the exclusive property of Company and
shall be delivered to the Company and not retained by the Consultant upon
termination of this Agreement for any reason whatsoever.
7. Notice. Any notices required or permitted hereunder shall be in
writing and shall be deemed to have been given when personally delivered or when
mailed, certified or registered mail, postage prepaid, to the following
addresses:
If to the Consultant:
c/o Payco American Corporation
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
If to the Company:
Payco American Corporation
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
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With a copy to:
XxXxxx De Leeuw & Co.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
The Company shall give the Consultant written notice of any default under this
Agreement and afford the Consultant fifteen days to cure such default.
8. General.
(a) Governing Law; Jurisdiction. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of New York applicable to contracts executed and to be performed
entirely within said State. Any judicial proceeding brought against any of the
parties to this Agreement or any dispute arising out of this Agreement or any
matter related hereto may be brought in the courts of the State of New York or
in the United States District Court for the Southern District of New York, and,
by execution and delivery of this Agreement, each of the parties to this
Agreement accepts the jurisdiction of said courts, and irrevocably agrees to be
bound by any judgment rendered thereby in connection with this Agreement. The
foregoing consent to jurisdiction shall not be deemed to confer rights on any
person other than the respective parties to this Agreement.
(b) Assignability. The Consultant may not assign his interest in or
delegate his duties under this Agreement. Notwithstanding anything else in this
Agreement to the contrary, the Company may assign this Agreement to and all
rights hereunder shall inure to the benefit of any person, firm or corporation
succeeding to all or substantially all of the business or assets of the Company
by purchase, merger or consolidation.
(c) Enforcement Costs. In the event that either the Company or the
Consultant initiates an action or claim to enforce any provision or term of this
Agreement, the costs and expenses (including attorney's fees) of the prevailing
party shall be paid by the other party, such party to be deemed to have
prevailed if such action or claim is concluded pursuant to a court order or
final judgment which is not subject to appeal, a settlement agreement or
dismissal of the principle claims.
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(d) Binding Effect. This Agreement is for the engagement of the
Consultant, personally, and for the services to be rendered by him must be
rendered by him and no other person. This Agreement shall be binding upon and
inure to the benefit of the Company and its successors and assigns.
(e) Entire Agreement; Modification. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and may not be modified or amended in any way except in writing by the parties
hereto.
(f) Duration. Notwithstanding the term of engagement hereunder, this
Agreement shall continue for so long as any obligations remain under this
Agreement.
(g) Survival. The covenants set forth in Section 6 of this Agreement
shall survive and shall continue to be binding upon the Consultant as set forth
in such Sections notwithstanding the termination of this Agreement for any
reason whatsoever. The covenants set forth in Section 6 of this Agreement shall
be deemed and construed as separate agreements independent of any other
provision of this Agreement. The existence of any claim or cause of action by
the Consultant against Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by Company of any
or all covenants.
(h) Remedies. The parties recognize that the performance of the
obligations under Section 6 of this Agreement by the Consultant is special,
unique and extraordinary in character, and that in the event of the breach by
the Consultant of the terms and conditions of Section 6 of this Agreement, the
Company or any of its Affiliates shall be entitled to (a) institute and
prosecute proceedings in any court of competent jurisdiction to enforce the
specific performance hereof by the Consultant or to enjoin the Consultant from
engaging in any activities prohibited hereunder or (b) pursue any other remedy
available at law or in equity.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto executed this Agreement the day and year first written above.
PAYCO AMERICAN CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
CONSULTANT
/s/ Xxxxxx X. Punches
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Xxxxxx X. Punches
