EMPLOYMENT AGREEMENT
THIS AGREEMENT dated this ____ day of ______, 1996 is made between NCO
FINANCIAL SYSTEMS, INC., whose address is 0000 Xxxxxx Xxxx, Xxxx Xxxx, XX 00000
referred to as the "Company" and XXXXXX X. XXXXXXX, an individual, residing at
000 Xxxx Xxxxxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 (the "Employee").
In consideration of their mutual promises and covenants set forth
herein, and intending to be legally bound hereby, the Company and the Employee
agree as follows:
1. Employment. The Company hereby employs the Employee as
the Company's Vice President of Operations and the Employee hereby
accepts such employment in accordance with the terms and conditions
of this contract.
2. Duties of the Employee. As Vice President of Operations, the
Employee shall be in charge of the Company's collection operations, and shall
have full authority and responsibility, subject to the general direction,
approval and control of the Company's Executive Officers and Board of Directors,
for formulating general collection policies, procedures and such other or
further duties and services of a similar nature as may be reasonably required of
him or assigned to him by the Company's Executive Officers or Board of
Directors. The Employee shall at all times be subject to the supervision of the
Executive Officers and Board of Directors of the Company.
The Employee shall devote his full business time, attention, energies
and best efforts to the performance of his duties hereunder and to the promotion
of the business and interests of the Company and of any corporate subsidiaries
or affiliated companies.
3. Term of Employment. The term of employment shall begin on the date
hereof and continue for a term of five (5) years (the "Term"). The Company shall
have the option, subject to the Employee's consent, to extend the Term for such
additional periods as the Company may determine from time to time.
1
4. Compensation; Benefits; and Expenses.
(a) Compensation. In addition to the items set forth
below, the Employee's compensation for the services to be provided
by him pursuant to this Agreement is set forth on the attached
Exhibit "A."
(b) Benefits. The Employee shall be entitled to participate in
all insurance, vacation and other fringe benefit programs of the Company to the
extent and on the same terms and conditions as are accorded to other management
employees of the Company. Furthermore, the Employee shall receive a car leased
by the Company, to the Employee's reasonable satisfaction.
(c) Business Expenses. The Company will pay, or reimburse the
Employee for, all ordinary and reasonable out-of-pocket business expenses
incurred by the Employee in connection with his performance of services
hereunder during the employment 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. All expenses
related to the operation of the Employee's car shall be covered by the Company.
(d) Entire Compensation. The compensation provided for
in this Agreement is in full payment of the services to be rendered
by the Employee to the Company hereunder.
5. Insurance. The Company may, in its sole discretion and at its own
expense, apply for and procure in its own name and for its own benefit or the
benefit of the Employee key man life insurance on the life of the Employee in
any amount or amounts considered advisable by the Company, and the Employee
shall submit to any medical or other examination and execute and deliver such
application or other instrument as may be reasonably necessary to effectuate
such insurance. The Company shall also have the right to assume any insurance
policies of the Employee in existence at the time employment hereunder
commences. At such time as the Employee's employment is terminated, the Employee
shall have the right to purchase from the Company any insurance policies at such
policy's cash surrender value, owned in whole or in part by the Company on the
life or health of the Employee.
2
6. Death or Total Disability of the Employee.
(a) Death. In the event of the death of the Employee during
the Term of this Agreement or any extension thereof, compensation payments shall
continue in accordance with the provisions of paragraph 8 of this Agreement.
(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
thirty (30) days' written notice thereof. The foregoing notwithstanding,
compensation payments shall continue in accordance with the provisions of
paragraph 8 of this Agreement, provided that if the Employee, during any period
of disability, including after termination of this Agreement, 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 Base Salary that the Employee
would be entitled to receive from the Company 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 six (6) consecutive months, during the Term of this Agreement, unable or
incompetent to carry out, on a substantially full-time basis, 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 by the Company, the cost of
which examination shall be paid by the Company.
7. Termination of Employment. In addition to termination pursuant to
paragraph 6 above, the Company, following prior written notice to the Employee,
may discharge the Employee and thereby terminate his employment hereunder for
the following reasons: (a) ("for cause") (i) habitual intoxication; (ii) refusal
to submit to treatment of an existing drug addiction; (iii) conviction of a
felony; (iv) willful misconduct by the Employee in connection with the
performance of his duties; (v) dishonesty, fraud or misappropriation of funds
of the Company; (vi) insubordination or refusal to comply with a lawful
directive of the Chief Executive Officer of the Company or his designee; or
(vii) the Employee's breach of this Agreement in any manner or respect which is
committed in bad faith and without reasonable belief that such action is in the
best interest of the Company.
8. Payment Upon Termination. If the Employee dies during the Term, or
if this Agreement is terminated by the Company for any reason other than the
causes set forth in paragraph 7 hereof, the Company shall continue to pay the
Employee's full compensation, including bonuses, for the balance of the Term.
Such compensation shall be paid to the Employee, or his widow, or, if she is not
then living, to the Employee's estate. If the Employee is terminated for any
reason set forth in Section 7 hereof or if the Employee voluntarily terminates
his employment, he shall receive no further compensation except such amounts as
shall have accrued as of the date of termination.
3
9. Non-Disclosure. The Employee recognizes and acknowledges that he has
and 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.
10. Noncompetition. The Employee agrees that during the Term of this
Agreement and any extension thereof, and for a period of two (2) years after the
Company ceases to pay the Employee any compensation pursuant to the terms of
this Agreement, the Employee shall not, unless acting pursuant hereto or with
the prior written consent of the Board of Directors of the Company, directly or
indirectly:
(a) solicit business from or perform services for, any person,
company or other entity which at any time during the Employee's employment by
the Company was a client or customer of the Company if such business or services
are of the same general character as those engaged in or performed by the
Company. The foregoing notwithstanding, this restriction is not intended to stop
the Employee from working for a competitor of the Company which has the same
clients and customers as the Company, provided that the Employee does not
interfere with the business relationship of the Company with such clients and
customers;
(b) solicit for employment or in any other fashion hire
any of the employees of the 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.
In the event that any provisions of this paragraph 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.
4
11. Equitable Relief; Survival.
(a) The Employee acknowledges that the restrictions contained
in paragraphs 9 and 10 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 those 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
jurisdictions and Employee further irrevocably submits to the jurisdiction of
any Pennsylvania court of Federal court sitting in the Eastern District of
Pennsylvania over any suit, action or proceeding arising out of or relating to
paragraphs 9 or 10. The Employee hereby waives, to the fullest extent permitted
by law, any objection that he may now or hereafter have to such jurisdiction or
to the venue of any such suit, action or proceeding brought in such a court and
any claim that such suit, action or proceeding has been brought in any
inconvenient forum. Effective service of process may be made upon the Employee
by mail under the notice provisions contained in paragraph 14 hereof.
(b) Survival of Covenants. The provisions of paragraphs
8, 9 and 10 shall survive the termination of this Agreement.
12. 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 may be deemed expedient or necessary by the
Company in its sole discretion.
5
13. 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.
14. 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: 0000 Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
with copy to: Xxxxxx Xxxxxx, Esquire
000 X. Xxxxx Xx., 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
If to the Employee: 000 X. Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 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, facsimile, 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 the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other parties hereto
notice in the manner herein set forth.
6
15. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws (and not the law of
conflicts) of the Commonwealth of Pennsylvania.
16. Indemnification: The Company shall indemnify the Employee and hold
him harmless for all acts or decisions made by him in good faith while
performing services for the Company. The Company shall pay all expenses
including attorney's fees, actually and necessarily incurred by the Employee in
connection with the defense of any act, suit or proceeding and in connection
with any related appeal including the cost of court settlements.
17. 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. 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.
IN WITNESS WHEREOF, this Agreement has been executed by the parties on
the date first above written.
The Company:
Attest: NCO Financial Systems, Inc.
______________________[SEAL] BY:__________________________
Xxxxxxx Xxxxxxx, President
Witness: The Employee:
--------------------------- -----------------------------
Xxxxxx X. XxXxxxx
7
EXHIBIT "A"
COMPENSATION
A. Base Salary: The Employee shall be paid a base salary of One
Hundred Twenty Five Thousand Dollars ($125,000) per year (the
"Base Salary"), to be adjusted each year in accordance with
the Consumer Price Index ("CPI") in effect for such year,
payable in installments, in arrears, in accordance with the
Company's regular payroll practices, but not less often than
monthly.
B. Bonus: The Employee shall, in addition to the Base Salary,
receive an annual bonus as shall be determined by the
Company's Board of Directors.
C. Stock Option Plan: The Employee shall participate in such
Stock Option Plan or Plans as shall be determined by the
Company's Board of Directors.
8
