EMPLOYMENT AGREEMENT
This Agreement is made as of the 1st day of March, 1997 between Outsourcing
Solutions Inc., a Delaware corporation, with offices at 000 Xxxxx Xxxxx Xxxx
Xxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx 00000 (the "Company"), and Xxxxxxx X.
Xxxxx, an individual residing in the State of Missouri (the "Employee").
RECITALS
WHEREAS, the Company desires to secure the services and employment of the
Employee on behalf of the Company, and the Employee desires to enter into
employment with the Company, upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. Employment. The Company hereby employs the Employee as Senior Vice
President, Chief Information Officer of the Company, and the Employee accepts
such employment for the term of the employment specified in Section 3 below.
During the Employment Term (as defined below), the Employee shall serve as the
Senior Vice President, Chief Information Officer of the Company, performing such
duties as shall be reasonably required of such an employee of the Company, and
shall have such other powers and perform such other additional executive duties
as may from time to time be assigned to him by the Board of Directors of the
Company. The Employee's primary place of employment shall be St. Louis,
Missouri.
2. Performance. The Employee will serve the Company faithfully and to the
best of his ability and will devote substantially all of his time, energy,
experience and talents during regular business hours and as otherwise reasonably
necessary to such employment, to the exclusion of all other business activities.
3. Employment Term. The employment term shall begin on the date of this
Agreement and continue until the first anniversary date of this Agreement,
unless earlier terminated pursuant to Section 7 below (the "Employment Term").
The Employment Term may be extended by mutual agreement of the Company and the
Employee in accordance with Section 7 below.
4. Compensation.
(a) Salary. During the Employment Term, the Company shall pay the Employee
a base salary, payable in equal semimonthly installments, subject to withholding
and other applicable taxes, at an annual rate of One Hundred Ninety Thousand
Dollars ($190,000.00).
(b) Bonus. The Company shall pay the Employee a signing bonus, subject to
withholding and other applicable taxes, of $75,000, payable on or before March
7, 1997. Commencing for the 1997 calendar year, the Employee shall be eligible
for an annual bonus of up to 50% of his base salary. Such annual bonus shall be
based on the satisfaction of performance targets established by the Board of
Directors on or before December 31 of each year for the next succeeding year.
(c) Stock Options. The Company shall grant to the Employee options to
purchase 25,000 shares of the Company's common stock at an exercise price of
$25.00 per share pursuant to the Company's 1995 Stock Option and Stock Award
Plan (the "Plan"). Such options shall vest upon the satisfaction of performance
and liquidity targets as set forth in the Plan and any award agreement pursuant
to which such options are granted.
(d) Medical and Dental Health Benefits. During the Employment Term, the
Employee shall be entitled to medical and dental health benefits in accordance
with the Company's established practices with respect to its key employees.
(e) Vacation; Sick Leave. During the Employment Term, the Employee shall be
entitled to vacation and sick leave in accordance with the Company's established
practices with respect to its key employees.
5. Expenses. The Employee shall be reimbursed by the Company for all
reasonable expenses incurred by him in connection with the performance of his
duties hereunder in accordance with policies established by the Board from time
to time and upon receipt of appropriate documentation.
6. Secret Processes and Confidential Information. For the Employment Term
and thereafter, (a) the Employee will not divulge, transmit or otherwise
disclose (except as legally compelled by court order, and then only to the
extent required, after prompt notice to the Company of any such order), directly
or indirectly, other than in the regular and proper course of business of the
Company, any confidential knowledge or information with respect to the
operations or finances of the Company or with respect to confidential or secret
processes, services, techniques, customers or plans with respect to the Company
and (b) the Employee will not use, directly or indirectly, any confidential
information for the benefit of anyone other than the Company; provided, however,
that the Employee has no obligation, express or implied, to refrain from using
or disclosing to others any such knowledge or information which is or hereafter
shall become available to the public other than through disclosure by the
Employee. All new processes, techniques, know-how, inventions, plans, products,
patents and devices developed, made or invented by the Employee, alone or with
others, while an employee of the Company, shall be and become the sole property
of the Company, unless released in writing by the Company, and the Employee
hereby assigns any and all rights therein or thereto to the Company.
During the term of this Agreement and thereafter, Employee shall not take
any action to disparage or criticize to any third parties any of the services of
the Company or to commit any other action that injures or hinders the business
relationships of the Company.
During the term of this Agreement and thereafter, Employee shall not
employ, solicit for employment or otherwise contract for the services of any
employee of the Company or any of its Affiliates (as defined below) at the time
of this Agreement or who shall subsequently become an employee of the Company or
any of its Affiliates.
All files, records, documents, memorandums, notes or other documents
relating to the business of Company, whether prepared by Employee or otherwise
coming into his possession in the course of the performance of his services
under this Agreement, shall be the exclusive property of Company and shall be
delivered to Company and not retained by Employee upon termination of this
Agreement for any reason whatsoever.
7. Termination. The employment of the Employee hereunder shall
automatically terminate at the end of the Employment Term, unless the parties
hereto mutually agree otherwise in writing, at least 30 days prior to expiration
of the Employment Term. The employment of the Employee hereunder may also be
terminated at any time by the Company with or without "cause". For purposes of
this Agreement, "cause" shall mean: (i) embezzlement, theft or other
misappropriation of any property of the Company or any subsidiary, (ii) gross or
willful misconduct resulting in substantial loss to the Company or any
subsidiary or substantial damage to the reputation of the Company or any
subsidiary, (iii) any act involving moral turpitude which results in a
conviction for a felony involving moral turpitude, fraud or misrepresentation,
(iv) gross neglect of his assigned duties to the Company or any subsidiary, (v)
gross breach of his fiduciary obligations to the Company or any subsidiary, or
(vi) any chemical dependence which materially affects the performance of his
duties and responsibilities to the Company or any subsidiary; provided that in
the case of the misconduct set forth in clauses (iv) and (vi) above, such
misconduct shall continue for a period of 30 days following written notice
thereof by the Company to the Employee.
8. Severance; Non-Competition Covenant. If the Employee's employment is
terminated by the Company without "cause", the Employee shall be entitled to
receive an amount equal to his base salary for the year preceding the Employee's
termination, payable, at the Company's option, in a lump sum on the date of
termination or ratably over the one year period following the date of
termination. If the Employee's employment is terminated by the Company "for
cause", the Employee shall not be entitled to severance compensation. The
Employee covenants and agrees that he will not, during the one year period
following the termination of the Employee's employment by the Company, within
any jurisdiction or marketing area in which the Company or any of its Affiliates
(as defined below) is doing business or is qualified to do business, directly or
indirectly own, manage, operate, control, be employed by or participate in the
ownership, management, operation or control of, or be connected in any manner
with, any business of the type and character engaged in and competitive with
that conducted by the Company or any of its Affiliates at the time of such
termination; provided, however, that ownership of securities of 2% or less of
any class of securities of a public company shall not be considered to be
competition with the Company or any of its Affiliates. For the purposes of this
Section 8, the term "Affiliate" shall mean, with respect to the Company, any
person or entity which, directly or indirectly, owns or is owned by, or is under
common ownership with, the Company. The term "own" (including, with correlative
meanings, "owned by" and "under common ownership with") shall mean the ownership
of 50% or more of the voting securities (or their equivalent) of a particular
entity.
9. Notice. Any notices required or permitted hereunder shall be in writing
and shall be deemed to have been given when personally delivered or when mailed,
certified or registered mail, postage prepaid, to the following addresses:
If to the Employee:
Xxxxxxx X. Xxxxx
0000 Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
If to the Company:
Outsourcing Solutions Inc.
000 Xxxxx Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: President and Chief Executive Officer
10. General.
(a) Governing Law; Jurisdiction. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
Missouri applicable to contracts executed and to be performed entirely within
said State. Any judicial proceeding brought against any of the parties to this
Agreement or any dispute arising out of this Agreement or any matter related
hereto may be brought in the courts of the State of Missouri or in the United
States District Court for the Eastern District of Missouri, and, by execution
and delivery of this Agreement, each of the parties to this Agreement accepts
the jurisdiction of said courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Agreement. The foregoing
consent to jurisdiction shall not be deemed to confer rights on any person other
than the respective parties to this Agreement.
(b) Assignability. The Employee may not assign his interest in or delegate
his duties under this Agreement. Notwithstanding anything else in this Agreement
to the contrary, the Company may assign this Agreement to and all rights
hereunder shall inure to the benefit of any person, firm or corporation
succeeding to all or substantially all of the business or assets of the Company
by purchase, merger or consolidation.
(c) Enforcement Costs. In the event that either the Company or the Employee
initiates an action or claim to enforce any provision or term of this Agreement,
the costs and expenses (including attorney's fees) of the prevailing party shall
be paid by the other party, such party to be deemed to have prevailed if such
action or claim is concluded pursuant to a court order or final judgment which
is not subject to appeal, a settlement agreement or dismissal of the principle
claims.
(d) Binding Effect. This Agreement is for the employment of Employee,
personally, and for the services to be rendered by him must be rendered by him
and no other person. This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns.
(e) Entire Agreement; Modification. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
may not be modified or amended in any way except in writing by the parties
hereto.
(f) Duration. Notwithstanding the term of employment hereunder, this
Agreement shall continue for so long as any obligations remain under this
Agreement.
(g) Survival. The covenants set forth in Sections 6 and 7 of this Agreement
shall survive and shall continue to be binding upon Employee notwithstanding the
termination of this Agreement for any reason whatsoever. The covenants set forth
in Sections 6 and 8 of this Agreement shall be deemed and construed as separate
agreements independent of any other provision of this Agreement. The existence
of any claim or cause of action by Employee against Company, whether predicated
on this Agreement or otherwise, shall not constitute a defense to the
enforcement by Company of any or all covenants. It is expressly agreed that the
remedy at law for the breach or any such covenant is inadequate and that
injunctive relief shall be available to prevent the breach or any threatened
breach thereof.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
hereunto executed this Agreement the day and year first written above.
OUTSOURCING SOLUTIONS INC.
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President and
Chief Executive Officer
EMPLOYEE
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
