Exhibit 10.32
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made this eighth day of December, 2000, to be effective
as of December 15, 2000 (the "Effective Date") by and between NCO Financial
Systems, Inc., a Pennsylvania corporation, (hereinafter called "Company"), and
Xxxxxx Xxxxxxxxxx, an individual (hereinafter called "Employee").
W I T N E S S E T H:
WHEREAS, Company wishes to employ Employee and Employee wishes to be
employed by Company on the terms and conditions 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 payments 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 in the healthcare area 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.
"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 failure
to perform the duties hereunder, which breach effects the business operations of
Company, and 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 employer.
"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 two (2) years
after Employee's employment with Company is either terminated by Employee or by
Company for any reason whatsoever;
(b) For purposes of Section 14(a)(B) and 14(c), from the date hereof until two
(2) year after Employee's employment is either terminated by Employee or by
Company for any reason whatsoever.
"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 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 and Division Manager of
Company's Healthcare Division (the "Division"). In such capacity, Employee shall
be responsible for the Division's revenue attainment, including supervision of
the Division's sales force and perform sales and marketing services as well
overseeing the Division's operations. As the Division's Manager, Employee shall
manage the Division's transition to a new platform. Employee shall also 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 the
Chief Executive Officer and Chief Operating Officer of Company and in accordance
with the policies set by them. In addition, Employee will render such other
services and perform such other executive duties for Company and its direct and
indirect wholly owned Subsidiaries and affiliates as the Chief Executive Officer
of Company may from time to time reasonably request of Employee. Employee may,
in addition, hold such offices with Company which may from time to time be
offered to Employee. Employee's authority shall be subject at all times to the
direction and control of the Chief Executive Officer and Chief Operating Officer
of Company and to such Officers' discretion to determine the policies of
Company.
(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. Employee may engage in
charitable, civic, fraternal, trade and professional association activities that
do not interfere with Employee's obligations to Company, but Employee shall not
be employed by or receive any remuneration from any other for-profit business
without prior written consent of Company, which may be withheld for any reason
whatsoever. The foregoing notwithstanding, Employee shall be permitted to
provide general financial consulting services to third parties regarding lending
and investment transactions ("Consulting Services") provided that such
Consulting Services are fully disclosed to and approved by Company as not being
in conflict with (i) Employee's fiduciary obligations to Company, and (ii)
Company's business interests, and which Consulting Services are not deemed to be
a part of Employee's job responsibilities hereunder and do not interfere with
Employee ability to perform his duties as the Division's Manager.
(c) Employee's services will be conducted at Company's offices in the Fort
Washington, Pennsylvania area 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 services 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 an initial Term of Employment
of three (3) years (the "Initial Term"), commencing on the date Effective Date
(the "Commencement Date"), and ending on December 14, 2003, unless sooner
terminated as hereinafter provided. Unless either party elects to terminate this
Agreement at the end of the Initial Term by giving the other party written
notice of such election at least one hundred twenty (180) days before the
expiration of the Initial Term, the Term of Employment shall be deemed to have
been extended for an additional term of one (1) year (the "Additional Term")
commencing on the day after the expiration of the Initial Term. At any time
during the Additional Term, either party may terminate this Agreement by giving
the other party written notice of such election at least one hundred twenty
(180) days prior to such termination.
5. Compensation and Benefits.
(a) For all of the service rendered by Employee to Company, Employee shall
receive Base Compensation at the gross annual rate of Two Hundred Fifty Thousand
Dollars ($250,000) payable in installments in accordance with Company's regular
payroll practices in effect from time to time.
(b) The Employee shall be entitled to an annual bonus in an amount up to One
Hundred and Twenty Five Thousand Dollars ($125,000) (the "Bonus") based upon the
attainment of certain financial goals established by the Company and the
Employee of Company and Employee as follows: thirty percent (30%) of the Bonus
upon attainment of annual corporate profit goals, thirty percent (30%) of the
Bonus upon the Division attaining its annual sales goal and forty percent (40%)
of the Bonus upon attainment of annual business objectives.
(c) In addition to the foregoing compensation, Employee shall receive a
commission of Forty percent (40%) of the fee earned by Company as a result of
Employee providing Consulting Services in accordance with the provisions of
Section3(b). Attached hereto as Schedule "A" is a listing of a number of
transactions in which Employee has been involved and which Company acknowledges
that Employee may continue to work while employed by Company but in which
transactions Company shall not participate in the fee earned by Employee.
6. Fringe Benefits. As an inducement to Employee to commence employment
hereunder, and in consideration of Employee's covenants under this Agreement,
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.
(b) Employee shall be entitled to a total of four (4) weeks paid vacation and
personal days during each year, subject to Company's generally applicable
policies. All vacation and personal days must be used within the year in which
available and may not be carried over into subsequent years. Employee shall give
oral or written notice prior to the commencement of any vacation in excess of
five (5) business days.
(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) Employee shall receive an automobile leased by Company, at a monthly cost
not to exceed One Thousand Dollars ($1000) and Company shall pay for insurance
for such automobile as well as all reasonable expenses related to the operation
of the automobile.
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, Annual 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 (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, Annual 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
Annual Bonus earned to the date of Employee's death, to the extent payable
hereunder, 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.
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, Annual 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.
10. Termination without Cause. Company may terminate Employee's employment
relationship with Company at any time without Cause. Notwithstanding termination
of Employee' employment under this Section 10, Employee shall continue to be
eligible to receive and Company shall continue to pay Employee's Base
Compensation in accordance with standard payroll practices, a pro rata portion
of the Annual Bonus earned up to the date of termination and all other
compensation and benefits as such amounts would have accrued through the end of
the Initial Term or, if such termination occurs during the Additional Term,
through the end of the Additional Term.
11. Termination by Employee. Employee may terminate his employment at any time
upon at least 180 days' prior written notice to Company. If Employee terminates
his employment, Company shall have no obligation to Employee for Base
Compensation, Annual 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.
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 as Base Compensation and other amounts due after
Employee's termination without Cause in accordance with Section 10 of this
Agreement; and Employee further agrees and acknowledges that the Fringe Benefits
described above constitute full, complete and adequate consideration for
Employee's obligations hereunder.
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 performing services similar to the Consulting
Services or 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 (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.
(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.
(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 a purported
Employee's violation of any of these restrictions, Company shall be entitled to
seek 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 purportedly 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. Company
shall have the right and remedy to obtain an order from a court of competent
jurisdiction 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 after an order is entered directing
same. 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.
(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. Prior Agreements. Employee represents to Company that 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.
17. 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.
(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:
Xx. Xxxxxx Xxxxxxxxxx
[intentionally omitted]
with a copy, given in the manner prescribed above, to:
Xxxxxxx Xxxxxxxxx
Flamm, Boroff, & Bacine, PC
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
If to Company:
Xxxxx Xxxxxxxxxx
Chief Operating Officer
NCO Financial Systems, Inc.
000 Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
with a copy, given in the manner prescribed above, to:
Xxxxxx Xxxxxx
Executive Vice-President and General Counsel
NCO Group, Inc.
000 Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, 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.
(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) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date first above written.
NCO FINANCIAL SYSTEMS, INC.
By:
Name:
Title:
Xxxxxx Xxxxxxxxxx
Schedule "A"
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Starboard Capital NCO Financing Transactions related to the Creditrust acquisition.
ExcelleRx, Inc. Member of the Board of Directors; and fees and equity interests related
to a new round of equity and debt financing.
The Revenue Maximization Residual fees related to the AHERF collections
Group, Inc.
MedCambio, Inc. Referral fees related to NCO Group and Crozer Keystone Health Systems
