EXHIBIT 10.35
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated this 20th day of
February, 2001, is made and entered into by and between NCO PORTFOLIO
MANAGEMENT, INC., a Delaware corporation, with its principal offices at 000
Xxxxxxxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, XX 00000 (the "Company") and XXXXXXX X.
XXXXXXXXX, an individual, residing at 000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx
00000 (the "Employee").
1. Employment. Subject to the Company's right to change the Employee's
title from time to time, the Company wishes to employ the Employee as a Senior
Vice President and the Employee wishes to be so employed by the Company on the
terms and conditions contained in this Agreement.
2. Duties of the Employee. During the Term (as hereinafter defined) the
Employee shall devote his full business time to the operations of the Company
and shall perform duties customarily incident to the positions held by him,
including, but not limited to, supervising and overseeing the Company's
portfolio purchasing operations and/or all other duties the Executive Officers
of the Company may from time to time assign to him. The Employee shall use his
best efforts in the performance of his duties hereunder and to the promotion of
the business and interests of the Company and any of its corporate subsidiaries
or affiliated companies. The Company hereby agrees that the Employee shall not
be required to relocate his residence for employment purposes without the
Employee's prior consent.
3. Term of Employment. The term of employment hereunder shall begin on
the date hereof and shall continue for a term of three (3) years, unless sooner
terminated in accordance with the terms of this Agreement (the "Term"). The
Company shall have the option, subject to the Employee's acceptance, to extend
the Term for two (2) additional one (1) year periods as it may determine.
4. Other Employment. The Employee shall not, during his employment by
the Company, act in or otherwise perform any other work or accept employment
with any other person or entity in violation of his duties and obligations under
this Agreement, unless otherwise requested by the Executive Officers of the
Company.
5. Compensation of the Employee. As full compensation for the services
rendered by the Employee pursuant to this Agreement, the Company agrees to pay
and the Employee shall be entitled to the compensation set forth on the attached
Exhibit "A".
6. Employee Benefits and Business Expenses.
A. Benefits. The Employee shall participate in the Company's
medical and dental insurance plan, executive life insurance plan and shall be
otherwise entitled to participate in all benefits available to other similarly
situated employees of the Company. The Employee shall be entitled to such
periods of paid time off (vacation and personal days) in accordance with
policies of the Company for similarly situated employees. The Employee shall
schedule such vacations in accordance with the reasonable needs of the Company.
Unused vacation or personal/sick days hereunder in any year shall not be
cumulative and may not be carried forward into each ensuing year. In addition,
the Employee shall have the use of a car leased by the Company at a cost not to
exceed $1,000.00 per month (exclusive of any value added taxes). The Company
shall also reimburse the Employee for reasonable and necessary out of pocket
automobile expenses incurred in performing his duties hereunder.
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B. Business Expenses. The Company will pay, or reimburse the
Employee for, all ordinary and reasonable out-of-pocket business expenses,
including lodging, tolls, beeper, reasonable cell phone expenses related to
business of the Company, meals, transportation for business purposes and client
entertainment, membership in trade associations incurred by the Employee in
connection with his performance of services hereunder during the Term in
accordance with the Company's expense authorization and approval procedures then
in effect upon presentation to the Company of an itemized account and written
proof of such expenses.
7. Death or Total Disability of the Employee.
A. Death. In the event of the death of the Employee during the
Term or any extension thereof, this Agreement shall terminate effective as of
the date of Employee's death, and the Company shall not have any further
obligation or liability hereunder except that the Company shall pay to the
Employee's designated beneficiary or, if none, his estate, the portion, if any,
of his compensation (which shall be his regular Base Salary and Bonus) due for
the period up to the Employee's date of death which remains unpaid.
B. Total Disability. In the event of the Total Disability (as
that term is hereinafter defined) of the Employee, the Company shall have the
right to terminate the Employee's employment hereunder by giving the Employee
ten (10) days' written notice thereof and, upon expiration of such ten (10) day
period, the Company shall not have any further obligation or liability under
this Agreement except that the Company shall pay to the Employee the portion, if
any, of his compensation due to the Employee (which shall be his regular Base
Salary and Bonus) for the period up to the date of termination which remains
unpaid, provided that if the Employee, during any period of disability, receives
any periodic payments representing lost compensation under any health and
accident policy or under any salary continuation insurance policy, the premiums
for which have been paid by the Company, the amount of the compensation, if any,
that the Employee would be entitled to receive from the Company during such
period of disability shall be decreased by the amounts of such payments.
The term "Total Disability," when used herein, shall mean a
mental, emotional or physical condition which rendered the Employee for a period
of ninety (90) consecutive days, during the Term of this Agreement, unable or
incompetent to carry out, on the basis set forth herein, the job
responsibilities he held or tasks that he was assigned at the time the
disability was incurred. The Employee agrees, in the event of any dispute as to
the determination made pursuant to this paragraph, to submit to a physical or
other examination by a licensed physician selected jointly by the Company and
the Employee, the cost of which examination shall be paid by the Company.
8. Termination for Cause. The Company may terminate the Employee's
employment relationship with the Company at any time for Cause (as hereinafter
defined). Upon termination of the Employee under this Section 8, the Company
shall have no obligation to the Employee for Base Salary, Bonus or other form of
compensation or benefits other than (a) amounts of Base Salary accrued through
the date of termination, and (b) reimbursement of appropriately documented
expenses incurred by the Employee before the termination of employment, to the
extent that the Employee would have been entitled to such reimbursement but for
the termination of employment. For the purposes hereof, "Cause" shall mean any
one or more of the following: (a) if the 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 the Employee commits
any act of fraud or deliberate misappropriation relating to or involving the
Company; or (c) habitual intoxication or drug addiction; or (d) if the Employee
commits a material breach of this Agreement which breach is not cured by the
Employee after thirty (30) days' prior written notice from the Company and
opportunity to cure such breach.
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9. Termination without Cause. The Company may terminate the Employee's
employment relationship with the Company at any time without Cause upon at least
sixty (60) days prior written notice to the Employee. Notwithstanding
termination of the Employee' employment under this Section 9, the Employee shall
continue to be eligible to receive and the Company shall continue to pay the
Employee's Base Salary in accordance with the Company's standard payroll
practices and a prorated portion of the 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 Term.
10. Termination by the Employee. The Employee may terminate his
employment at any time upon at least sixty (60) days prior written notice to the
Company. If the Employee terminates his employment, the Company shall have no
obligation to Employee for Base Salary, Bonus or other form of compensation or
benefits hereunder other than (a) amounts of Base Salary accrued through the
date of termination, and (b) reimbursement of appropriately documented expenses
incurred by the Employee before the termination of employment, to the extent
that the Employee would have been entitled to such reimbursement but for the
termination of employment.
11. Non-Disclosure. The Employee recognizes and acknowledges that he
will have access to certain confidential information of the Company and that
such information constitutes valuable, special and unique property of the
Company. The Employee agrees that he will not, for any reason or purpose
whatsoever, during or after the Term of his employment and any extension
thereof, disclose any of such confidential information to any party without
express authorization of the Company, except as necessary in the ordinary course
of performing his duties hereunder.
12. Restrictions. In consideration of the Company's employment of the
Employee in accordance herewith and for other good and valuable consideration,
the Employee agrees that during the Term and any extension thereof and for a
period of one (1) year after employment ceases for any reason other than the
Company not renewing this Agreement at the end of the Term, for the purposes of
section (A) below, and for a period of two (2) years after employment ceases,
for any reason whatsoever for the purposes of sections (B) and (C) below, the
Employee shall not, unless acting with the prior written consent of the Chief
Executive Officer of the Company, 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"),
including any former client or customer of the Company, i.e. one who sold to or
purchased from the Company accounts receivable portfolios or was a business
prospect for such transaction with the Company, which is involved in or any
other business activities which are the same as, similar to or in competition
with the business of the Company at the time of the termination of Employee's
employment; provided however, that nothing contained in this Section 12 shall
prevent Employee from holding for investment no more than three percent (3%) of
any class of equity securities of a company whose securities are publicly traded
on a national securities exchange or in a national market system; or (B) (i)
solicit or bid for business from a client or customer of the Company or for or
on behalf of, any person, company or other entity which is a competitor of the
Company; or (ii) solicit for employment or in any other fashion hire, or induce
or attempt to influence any employee to terminate his or her employment with
Company; or (C) use the name of the Company or any name similar thereto, but
nothing in this clause shall be deemed, by implication, to authorize or permit
use of such name after expiration of the period covered by this paragraph.
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For good and valuable consideration the sufficiency of which the
Employee hereby acknowledges, the Employee has agreed and does hereby agree to
the restrictions set forth in Section 11 and this Section 12 and any other
covenant or restriction contained in this Agreement. In the event that any
provision of the foregoing restrictions should ever be adjudicated to exceed the
time, geographic, service or product limitations permitted by applicable law in
any jurisdiction, then such provisions shall be deemed reformed in such
jurisdiction to the maximum time, geographic, service or product limitations
permitted to applicable law. The Company hereby acknowledges that the
restrictions set forth in section (A) above shall not apply in the event that
this Agreement is not renewed by the Company at the end of the Term.
13. Equitable Relief; Survival.
(a) The Employee acknowledges that the restrictions contained
in paragraphs 11 and 12 hereof are, in view of the nature of the business of the
Company, reasonable and necessary to protect the legitimate interests of the
Company, and that any violation of any provisions of such paragraphs will result
in irreparable injury to the Company. The Employee also acknowledges that the
Company shall be entitled to temporary and permanent injunctive relief, without
the necessity of proving actual damages, and to an equitable accounting of all
earnings, profits and other benefits arising from any such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which the Company may be entitled. In the event of any such violation, the
Company shall be entitled to commence and action for temporary and permanent
injunctive relief and other equitable relief in any court of competent
jurisdiction. Effective service of process may be made upon the Employee by mail
under the notice provisions contained in Section 16 hereof.
(b) Survival of Covenants. The provisions of paragraphs 11 and
12 shall survive the termination of this Agreement other than as a result of a
material breach by the Company which breach shall not be cured by the Company
within thirty (30) days after written notice of such breach from the Employee.
14. Remedies Cumulative; No Waiver. No remedy conferred upon the
Company by this Agreement is intended to be exclusive of any other remedy, and
each and every such remedy shall be cumulative and shall be in addition to any
other remedy given hereunder or now or hereafter existing at law or in equity.
No delay or omission by the Company in exercising any right, remedy or power
hereunder or existing at law or in equity shall be construed as a waiver
thereof, and any such right, remedy or power may be exercised by the Company
from time to time and as often as it deems expedient or necessary.
15. Enforceability. If any provision of this Agreement shall be invalid
or unenforceable, in whole or in part, then such provision shall be deemed to be
modified or restricted to the extent and in the manner necessary to render the
same valid and enforceable, or shall be deemed excised from this Agreement, as
the case may require, and this Agreement shall be construed and enforced to the
maximum extent permitted by law, as if such provision had been originally
incorporated herein as so modified or restricted, or as if such provision had
not been originally incorporated herein, as the case may be.
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16. Notices. All notices, request, demands, claims and other
communications hereunder will be in writing. Any notices, requests, demands,
claims or communications hereunder shall be deemed fully given if such are sent
by registered or certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
If to the Company: 000 Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
with copy to: Xxxxxx Xxxxxx, Esquire
General Counsel
[same address as above]
If to the Employee: 000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Any party hereto may give any notice, request, demand, claim or other
communication hereunder using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail, or
electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any party hereto
may change its address for the foregoing purposes by giving the other parties
hereto notice in the manner herein set forth.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
18 Contents of Contract; Amendment and Assignment. This Agreement sets
forth the entire understanding between the parties hereto with respect to the
subject matter hereof and supersedes and is instead of all other employment
arrangement between the Employee and the Company or any company affiliated with
the Company. This Agreement cannot be changed, modified or terminated except
upon written amendment duly executed by the parties hereto. All of the terms and
provisions of this Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective heirs, representatives, successors and
assigns of the parties hereto, except that the duties and responsibilities of
the Employee hereunder are of a personal nature and shall not be assignable in
whole or in part by the Employee. The Company may assign its rights hereunder to
any of its wholly owned subsidiaries without the Employee's consent, provided,
however, that the Company shall not relocate the primary work place of the
Employee or require the Employee to travel over 50 miles each way to work,
unless an increase in distance occurs as a result of the Employee moving his
residence, or material change the duties of the Emplyee hereunder without the
Employee's prior written consent.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties on
the date first above written. Attest: NCO Portfolio Management, Inc.
[SEAL] BY:
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Witness:
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Xxxxxxx X. Xxxxxxxxx
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EXHIBIT "A"
EMPLOYEE COMPENSATION
XXXXXXX X. XXXXXXXXX
A. Base Salary: The Employee shall, during the Term, be paid an annual
base salary (the "Base Salary") of Two Hundred Thousand Dollars
($200,000). The Base Salary shall be payable in installments, in
arrears, in accordance with the Company's regular payroll practices,
but not less often than monthly. The Employee's Base Salary shall be
reviewed annually and shall be adjusted by not less than the prevailing
Consumer Price Index ("CPI") for the Philadelphia, Pennsylvania area.
B. Bonus: In addition to the Base Salary, so long as the Employee
satisfies the duties and obligations of his employment and the Company
attains certain revenue, operational and profitability goals as
established by and subject to the approval of the Company's Board of
Directors Compensation Committee of the Company, the Employee shall be
entitled to receive an annual bonus in an amount up to One Hundred
Fifty Thousand Dollars ($150,000).
C. Stock Option Plan: The Employee, as part of his compensation hereunder,
shall receive an option to purchase 75,000 shares of the common stock
of the Company, at a price of $7.125 per share, in accordance with the
Company's Employee Stock Option Plan.
