Exhibit 10.8
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EMPLOYMENT AGREEMENT
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THIS AGREEMENT, made this 18th day of March 1998, by and between RMH
Teleservices, Inc., a Pennsylvania corporation (hereinafter called "Company"),
and Xxxxxx Xxxxxxxxx, an individual residing at 0000 Xxxxxxxx Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxxx, 00000 (hereinafter called "Employee").
W I T N E S S E T H:
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Company wishes to continue to employ Employee and Employee wishes to
continue to be in the employ of Company on the terms and conditions contained in
this Agreement.
WHEREAS, due to Company's desire to promote Employee to Chief Operating
Officer and to gain the protections and benefits contained in this Employment
Agreement, Company and Employee agree to the covenants and restrictions
contained herein;
WHEREAS, due to Employee's desire to obtain a promotion to Chief Operating
Officer and the protections and benefits contained in this Employment Agreement,
Employee agrees to the covenants and restrictions contained herein;
NOW, THEREFORE, in consideration of the facts, mutual promises and
covenants contained herein and intending to be legally bound hereby, Company and
Employee agree as follows:
1. Definitions. As used herein, the following terms shall have the
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meanings set forth below unless the contexts otherwise requires.
"Affiliate" shall mean a person who (i) with respect to any entity,
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directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such entity; or (ii) with
respect to Employee, is a parent, spouse or issue of Employee, including persons
in an adopted or step relationship.
"Annual Bonus" shall mean the bonus payments set forth in Section
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5(b), as such amount may be adjusted from time to time.
"Base Compensation" shall mean the annual rate of compensation set
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forth in Section 5(a), as such amount may be adjusted from time to time.
"Board" shall mean the Board of Directors of Company.
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"Business" shall mean the business conducted by Company or any
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Subsidiary or corporate parent thereof or entity sharing a common corporate
parent with the Company on the date of execution of this Agreement, including
business activities in developmental stages, business activities which may be
developed by the Company, or by any Subsidiary or corporate parent thereof or
entity sharing a common corporate parent with the 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 during Employee's employment
with the Company and about which Employee had or has constructive or actual
knowledge.
"Cause" shall include but not be limited to any one or more of the
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following:
(a) Employee breaches or neglects the material duties that
Employee is required to perform under the terms of this Agreement, including if
Employee performs his duties in an incompetent manner.
(b) Employee is convicted of a felony or a crime of moral
turpitude or has entered a plea of nolo contendere (or similar plea) to a charge
of such an offense;
(c) Employee uses alcohol or any unlawful controlled
substance while performing his duties under this Agreement and/or if such use
materially interferes with the performance of Employee' duties under this
Agreement;
(d) Employee commits any act of criminal fraud, material
dishonesty or misappropriation relating to or involving the Company;
(e) Employee materially violates a rule(s), regulation(s),
policy(ies) or plan(s) governing employee performance or express direction(s) of
the Board; or
(f) Employee engages in the unauthorized disclosure of
Confidential Information;
(g) Employee acts in a manner that is materially contrary to
the best interest of the Company.
"Change of Control" shall be deemed to have occurred upon the earliest
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to occur of the following events:
(a) any "person" as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 ("the Exchange Act") (other
than the Company, any subsidiary of the Company, any "person" (as defined
herein) acting on behalf of the Company as underwriter pursuant to an offering
who is temporarily holding securities in
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connection with such offering, any trustee or other fiduciary holding securities
under an employee benefit plan of the Company, or any "person" who, on the date
the RMH Teleservices, Inc. 1996 Stock Incentive Plan (the "Plan") is effective,
shall have been the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of or have voting control over shares of capital stock of the
Company possessing more than thirty percent (30%) of the combined voting power
of the Company's then outstanding securities) is or becomes the "beneficial
owner" (as hereinabove defined), directly or indirectly, of securities of the
Company representing thirty percent (30%) or more of the combined voting power
of the Company's then outstanding securities;
(b) during any period of not more than two consecutive
years (not including any period prior to the date the Plan is effective),
individuals who at the beginning of such period constitute the Board of
Directors, and any new director (other than a director designated by a "person"
who has entered into an agreement with the Company to effect a transaction
described in clause (a), (c) or (d) of this definition) whose election by the
Board of Directors or nomination for election by the Company's shareholders was
approved by a vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute at least a majority thereof;
(c) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation or other legal entity,
other than (1) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty percent (50%) of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation or (2) a
merger or consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no "person"(other than a "person" who, on the
date the Plan is effective, shall have been the "beneficial owner" of or have
voting control over shares of capital stock of the Company possessing more than
thirty percent (30%) of the combined voting power of the Company's then
outstanding securities) acquires more than thirty percent (30%) of the combined
voting power of the Company's then outstanding securities;
(d) the shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets (or any
transaction having a similar effect); or
(e) a "change of control" as hereinafter defined by the
Board of Directors for the express purposes of this Plan has occurred.
"Commencement Date" shall have the meaning specified in Section 4
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hereof.
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"Confidential Information" shall have the meaning specified in
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Section 12(c) hereof.
"Disability" shall mean Employee's inability, for a period of
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thirteen (13) consecutive weeks, or a cumulative period of 120 business days
(i.e., Mondays through Fridays, exclusive of days on which Company is generally
closed for a holiday) out of a consecutive period of twelve (12) months, to
perform the essential duties of Employee's position, due to a disability as that
term is defined in the American With Disabilities Act.
"Principal Stockholders" shall mean Xxxxxxx X. Xxxxxxx, XxxxXxx
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Xxxxx Xxxxxxx and Advanta Partners LP.
"Restricted Area" shall have the meaning specified in Section
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12(a) hereof.
"Restricted Period A" shall have the meaning specified in
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Section 12(a) hereof.
"Restricted Period B" shall have the meaning specified in
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Section 12(b) hereof.
"Subsidiary" shall mean any company in which Company owns
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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
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4 hereof as the same may be terminated in accordance with this Agreement.
"Voting Stock" shall mean capital stock of any class or classes
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having general voting power under ordinary circumstances, in the absence of
contingencies, to elect the directors of a company.
2. Employment. Company hereby employs Employee as Chief Operating
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Officer and Employee hereby accepts employment by Company for the period and
upon the terms and conditions specified in this Agreement.
3. Office and Duties.
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(a) Employee shall be promoted to Chief Operating Officer of
Company. 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 policies set
by the Board. As Chief Operating Officer, Employee shall be responsible for
managing the day-to-day operations of the business and shall have the
responsibility and authority, subject to policies set by and with the approval
of the Board, to employ and terminate employees, sign agreements and otherwise
to implement the
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policies and directives of the Board, all subject to the provisions of any
operating budget or budgets as may be approved from time to time by the Board
and subject to the By-Laws of the Company. Employee shall perform any other
duties reasonably required by the Board and reasonably related to his
responsibilities as Chief Operating Officer.
(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 work for any other for-profit business without
so disclosing such activity to the Board, in which event the Board may not
unreasonably withhold its consent to such activity.
4. Term. Employee shall be employed by Company for an
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initial Term of Employment (the "Initial Term"), commencing April 1, 1998 (the
"Commencement Date"), and ending on April 1, 2001, unless sooner terminated as
hereinafter provided.
5. Compensation and Benefits.
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(a) For all of the service rendered by Employee to
Company, Employee shall receive Base Compensation at the gross annual rate of
One Hundred and Eighty Thousand ($180,000) payable in installments in accordance
with Company's regular payroll practices in effect from time to time. The Base
Compensation shall be reviewed annually, on or around the anniversary date of
the Commencement Date of this Agreement to ascertain, in the sole discretion of
the President and the Chairman of the Board, the amount the Employee's Base
Compensation should be increased. In no event shall the increase be less than
the greater of five (5) percent of Employee's Base Compensation or the minimum
of the percentage increase of the Wage Increase for the metropolitan statistical
area of Philadelphia.
(b) In addition to the foregoing compensation, Employee
may be eligible to receive an annual bonus (the "Annual Bonus") in an amount, if
any, as shall be determined by the Board of Directors in its sole discretion.
The Annual Bonus, to the extent earned, shall be payable in a single lump-sum
payment within ninety (90) days after the end of each calendar year. No Annual
Bonus is guaranteed. To be eligible for an Annual Bonus, Employee must be
actively employed by the Company on the last day of the calendar year for which
the Annual Bonus is at issue.
(c) Employee may be eligible for certain stock options
pursuant to the terms, conditions and restrictions of the RMH Teleservices, Inc.
1996 Stock Incentive Plan and pursuant to the grant as reflected in Attachment
"A" hereto.
(d) If Employee's employment is terminated by the
Company at any time within three months before, or six month after the
occurrence of a Change in Control,
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Employee shall be entitled to the following severance, in lieu of any other Base
Compensation, Annual Bonus, Additional Bonus or any other compensation and
benefits provided herein:
(i) The Company shall pay as severance pay to Employee,
no later than the tenth business day following the termination, a lump sum
severance payment equal to 100% of Employee's Base Compensation for seventeen
(17) months.
(ii) For seventeen (17) months after such termination,
Employee shall be entitled to all Fringe Benefits described in 6(a) herein,
subject to the terms, conditions and restrictions of the specific plans, except
for sick time. The Company shall use its best efforts to arrange to provide
Employee with group health benefits substantially similar to those which
Employee was receiving immediately prior to the termination. Fringe Benefits
otherwise receivable by the Employee pursuant to this paragraph (ii) will be
reduced to the extent comparable benefits are actually received by Employee
during such period.
(iii) Employee shall not be required to mitigate the
amount of any payment provided for in this Section 5(d) by seeking employment or
otherwise.
(iv) In the event that any payment or benefit received
or to be received by Employee in connection with a Change in Control or the
termination of Employee's employment (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Company)
(collectively the "Total Payments"), would not be deductible (in whole or in
part) as a result of Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code"), by the Company, an Affiliate or other person making such
payment or providing such benefit, the payments or benefits shall be so reduced
until no portion of the Total Payments is not deductible. Employee shall be
entitled to elect which payments or benefits shall be so reduced. For purposes
of this limitation, (1) no portion of the Total Payments the receipt or
enjoyment of which Employee shall have effectively waived in writing prior to
the date of payment shall be taken into account, (2) no portion of the Total
Payments shall be taken into account which in the opinion of tax counsel
selected by the Company's independent auditors and acceptable to Employee does
not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of
the Code, and (3) the value of any noncash benefit or any deferred payment or
benefit included in the Total Payments shall be determined by the Company's
independent auditors in accordance with the principles of Sections 280(d)(3) and
(4) of the Code.
(e) Employee agrees and acknowledges that his employment and
the other protections and benefits of this Agreement are full, adequate and
sufficient consideration for the restrictions and obligations set forth in
Sections 11 and 12 of this Agreement.
6. Fringe Benefits. As an inducement to Employee to commence
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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:
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(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 the plans and programs 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 four (4) weeks paid
vacation during each year, subject to Company's generally applicable policies
relating to vacations, and excluding standard Company holidays. Employee shall
give the President (or his or her designee) written notice at least seven (7)
days prior to the commencement of any vacation in excess of five (5) business
days.
(c) Company will reimburse Employee for all reasonable and
necessary 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.
(d) Company will pay the premiums ("the Company Paid
Amount") on a life insurance policy to be owned by the Company in the face
amount of $1,000,000.00, insuring the life of Employee, subject to the
restrictions and limitations contained in the insurance agreement or agreements,
and provided that the Employee passes each insurance company's required medical
examination and is insurable at standard rates. Employee shall at all times have
the option to pay any premiums to acquire additional coverage beyond the Company
Paid Amount.
7. Disability. If Employee suffers a Disability as that term is
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defined herein, the 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) vested Stock Options
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. Any
compensation Employee receives from any Company paid for insurance, benefit plan
or policy under which the Employee was covered at the time of his inability, due
to his disability, including but not limited to workers' compensation payments
and payments from a Company disability plan will be deducted from the Company's
Base Compensation payment to Employee.
8. Death. If Employee dies during the Term of Employment, the
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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
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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) vested Stock Options 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.
9. Termination for Cause. Company may terminate Employee's employment
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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 any 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.
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(a) Company may terminate Employee's employment relationship with
Company at any time without Cause upon thirty (30) days written notice.
Notwithstanding termination of Employee under this Section 10, Company shall
continue to pay Employee's Base Compensation, as such Base Compensation would
have accrued through a seventeen (17) month period following such termination so
long as Employee executes and does not revoke a Separation Agreement and General
Release Agreement acceptable to Company which will be substantially in the form
attached hereto as Exhibit "B".
(b) Employee may terminate his employment with Company for any or no
reason, upon thirty (30) days written notice. If such notice is provided by
Employee, Employer, in its sole discretion, may waive the notice period or any
portion thereof, without pay (Base Compensation, Annual Bonus, etc.) or Fringe
Benefits to Employee for the remaining notice period. The Company shall then
consider the Employee's employment terminated on the date on which Employee
first gave written notice to the Company. Upon termination by Employee of his
employment under the provisions of this Subsection 10(b), the Company shall have
no obligation to Employee for Base Compensation, Annual Bonus, Fringe Benefits
or any 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 his termination of his employment.
(c) Termination of Employee's employment pursuant to Sections 7 through
10 shall release the Company of all its liabilities and obligations under this
Agreement, except as expressly provided in Sections 7 through 10. Termination of
Employee's employment pursuant to this Section shall not, however, release
Employee from Employee's obligations and restrictions as stated in Sections 11
and 12 of this Agreement.
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(d) Employee shall not be entitled to any payment or benefit under any
Company severance plan other than as reflected herein under Section 10, practice
or policy, if any, in effect at or after the time of Employee's termination
since this Agreement supersedes all such plans, practices and policies.
11. Company Property. All advertising, sales, manufacturers' and other
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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 physically 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.
12. Noncompetition, Trade Secrets, Etc. Employee hereby acknowledges that,
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during and solely as a result of his employment by Company, Employee will have
access to Confidential Information as that term is defined herein. 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
within this Agreement, the Employee hereby agrees as follows:
(a) From the date hereof until six (6) months following the termination
of Employee's employment with Company, for any or no reason, whether initiated
by Employee or Company, ("Restricted Period A"), Employee shall not, for his own
benefit or the benefit of any third party, directly or indirectly 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 or Canada (the "Restricted Area"), which provides
telemarketing services materially the same as the services Company provides to
third parties, or any other business activities which are materially the same as
and which are in direct competition with the Business, or with any business
activities carried on by Company or being planned by Company, at the time of the
termination of Employee's employment, or any other business activities which are
materially the same as the Business for any of the Company's past, present or
prospective clients, customers or accounts; provided however, nothing contained
in this Section 12 shall prevent Employee from holding for investment less than
five percent (5%) 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.
(b) From the date hereof until twenty-four (24) months following the
termination of Employee's employment with the Company, for any or no reason,
whether initiated by Employee or Company, ("Restricted Period B"), Employee
shall not, for his own benefit or the benefit of any third party, directly or
indirectly, induce or attempt to influence any employee, customer, independent
contractor or supplier of Company to terminate employment
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or any other relationship with Company. During "Restricted Period B", while
Employee is still employed by the Company, 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 has
been terminated, is considering terminating or has decided to terminate
employment with Company.
(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, made known to Employee or learned or
acquired by Employee while in the employ of Company. Confidential Information
shall not include (1) information unrelated to the Company which was lawfully
received by Employee free of restriction from another source having the right to
so furnish such Confidential Information; or (2) information after it has become
generally available to the public without breach of this Agreement by the
Employee; or (3) information which at the time of disclosure to the Employee was
known to the Employee to be free of restriction as evidenced by documentation
from the Company which the Employee possesses, or (4) information which Company
agrees in writing is free of such restrictions. 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 12(c) shall apply during and for a period of five
(5) years after 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.
(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 carried on or 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
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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 and Company acknowledge that, in the event either
party believes the other party has violated any of the terms of this Agreement,
the other party shall be entitled to seek from any court of competent
jurisdiction, without attempting arbitration, preliminary and permanent
injunctive relief.
(f) If the Restricted Periods "(A" or "B") 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 relevant
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. Employee hereby expressly
consents to the jurisdiction of any court within the Eastern District of
Pennsylvania for the purpose of seeking a preliminary or permanent injunction as
described above in Section 12(e), and agrees to accept service of process by
mail relating to any such proceeding. Company may supply a copy of Section 12 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.
13. Prior Agreements. Employee represents to Company that there are no
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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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14. Miscellaneous.
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(a) Indulgences, Etc. Neither the failure nor any delay on the part of
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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
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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
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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
two (2) days following the day when deposited in the United States mails, first
class postage prepaid, addressed as set forth below:
(i) If to Employee:
Xx. Xxxxxx Xxxxxxxxx
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
with a copy, given in the manner prescribed above, to:
Xxxxxxx Xxxxxx
(ii) If to Company:
RMH Teleservices, Inc.
00 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: XxxxXxx Xxxxx
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with a copy, given in the manner prescribed above, to:
Xxx Xxxxx, Esquire
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
Twelfth Floor Packard Building
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
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
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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 one or more 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
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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, for example,
--------------
in the context of vacation days, 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) Dispute Resolution. In the event of any disagreement of any nature
------------------
whatsoever between the parties to this Employment Agreement in any way relating
to this Employment Agreement, except for the ability of the parties to seek a
preliminary or permanent injunction as described above in Sections 12(e) and
(f), which need not be discussed between the parties or arbitrated, the parties
shall meet to attempt to resolve such disagreement. In the event of their
failure to do so within fifteen (15) days or such longer period of time as shall
be mutually agreed upon by the parties, either party may serve notice in writing
upon the other party requesting arbitration, which notice shall specify in
reasonable detail the nature of the dispute. Any arbitration under this Section
shall be held in Philadelphia, Pennsylvania or such other place as shall be
mutually agreed to by the parties, and conducted in accordance with the
procedures set forth hereafter and, to the extent not inconsistent with this
Section, in accordance with the Employment Dispute Resolution Rules of the
American Arbitration Association in effect on the date of this Agreement.
Company shall have the right and remedy to ask the arbitrator to require
Employee to account for any 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 Section 12, and
Employee shall account for and pay over such amounts to Company upon the
arbitrator's determination thereof.
(1) Any arbitration under this Section shall be before an
arbitrator who shall be experienced in the area of employment law. The
arbitrator shall be selected by the parties from lists provided by the American
Arbitration Association. The parties agree to exchange all relevant documents
prior to any hearing, and further agree that any dispute over such exchange may
be submitted to the arbitrator for decision, which decision shall be binding on
the parties. The parties further agree to exchange hearing exhibits and
designations of witnesses to be called at the hearing at least ten (10) calendar
days before any hearing as a
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party may not offer at the hearing as part of its direct case any witness,
evidence or document not so disclosed, unless such witness(es), evidence or
document(s) became available and/or known to the party who wishes to introduce
such witness(es), evidence and/or document(s) within the ten (10) calendar days
prior to the arbitration, and such witness(es), evidence or document(s) is
immediately provided to the arbitrator and the other party.
(2) Within 60 days of the production of all documents, evidence and
witness list as outlined in the preceding section, the arbitrator shall conduct
the arbitration hearing. Each party will have one day to present its case,
unless, upon request the arbitrator determines that more or less time is
appropriate. Within 30 days of the arbitration hearing, the arbitrator shall
render a decision in writing to each party.
(3) Any arbitration award must (i) be rendered in accordance with
applicable law as described in this Employment Agreement and (ii) be set forth
in a written decision which sets forth the reasons (including, without
limitation, the conclusions of fact and/or law) upon which such award is
rendered. Judgment upon an arbitration award may be rendered in any court of
competent jurisdiction or application may be made to any such state or federal
court of competent jurisdiction for judicial acceptance of an order to
enforcement of an arbitration award, as the case may be. Any arbitration award
shall be final and binding on the parties. Once an issue has been arbitrated
pursuant hereto, the decision of the arbitrator shall be res judicata with
respect to such issue.
(4) The arbitrator shall have the power to issue subpoenas
compelling testimony and/or the production of documents from any person whether
or not a party hereto, which subpoenas shall be enforceable in all courts of
competent jurisdiction in the Eastern District of Pennsylvania. In addition, the
arbitrator and attorney-of-record shall have the power to request through the
above-mentioned courts of competent jurisdiction the taking of depositions from
any person, not a party or a director, officer, employee or agent of a party,
who cannot be subpoenaed or is unable to attend the arbitration, whose testimony
the arbitrator deems both important and relevant to the resolution of the issues
presented for arbitration.
(5) The cost of the arbitration and all attorney fees shall be
borne by the parties in such proportion as the arbitrator shall direct, with
such arbitrator to give due consideration to the fault of the parties.
(6) Notwithstanding the foregoing, the parties need not arbitrate
any request for preliminary or permanent injunctive relief, may be brought by
either party in any state or federal court in the Eastern District of
Pennsylvania. Such litigation will toll the Restricted Periods beginning on the
alleged date of Employee's violation until the date the dispute is resolved.
(l) Jurisdiction of Courts. Any legal suit, action, claim, proceeding
----------------------
or investigation arising out of or relating to Sections 11 or 12 of this
Agreement may be instituted in any state or federal court in the Eastern
District of Pennsylvania, and each of the parties
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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. If for any reason such service of process by mail is ineffective, then
(i) Company shall be deemed to have appointed Xxx Xxxxx, Esquire, Wolf, Block,
Xxxxxx and Xxxxx-Xxxxx LLP, Twelfth Floor Packard Building, 000 Xxxxx 00xx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 as the authorized agent of Company to
accept and acknowledge, on behalf of Company service of any and all process
which may be served in any such suit, action, claim, proceeding or
investigation; and (ii) Employee shall be deemed to have appointed Xxxxxxx X.
Xxxxxx, Esquire, as Employee's authorized agent to accept and acknowledge, on
Employee's behalf, service of any and all process which may be served in any
such suit, action, claim, proceeding or investigation. 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.
(m) 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 11 and 12 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 in Philadelphia, Pennsylvania as of the date first above written.
RMH TELESERVICES, INC.
By: /s/ XxxxXxx Xxxxx Xxxxxxx
-----------------------------------
Name: XxxxXxx Xxxxx Xxxxxxx
Title: President
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxxx
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