EXHIBIT 10.18
AMENDMENT TO EMPLOYMENT AGREEMENT
AMENDMENT TO EMPLOYMENT AGREEMENT, dated as of February __, 2000 (this
"Amendment"), between Nationwide Credit, Inc. ("Employer") and Xxxxx
Xxxxxxx, residing at 0000 Xxxxx Xxxx, XX, Xxxx 00, Xxxxxxx, Xxxxxxx 00000
("Executive").
W I T N E S S E T H:
WHEREAS, Employer and Executive are parties to that certain Employment
Agreement dated as of December 31, 1997 (the "Employment Agreement"); and
WHEREAS, Employer and Executive desire to amend the Employment
Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, and intending to be legally bound hereby, the parties
hereto agree as follows:
Section 1. AMENDMENTS. Effective for all purposes (except as set forth in
paragraphs (c) and (f) below) as of July 19, 1999,
the Employment Agreement is amended as follows:
(a) Each reference therein to "President" shall be deleted and "Vice
Chairman" substituted therefor.
(b) The second sentence of paragraph 2 is amended to delete the
reference at the end thereof to "the Chairman of the Board" and
replace it with the phrase "the Board and the chief executive
officers of Employer, as applicable".
(c) A new sentence is hereby inserted in paragraph 2 between the
second and third sentences of that Section, which shall read as
follows:
"Without limiting the foregoing from and after January 1, 2000,
as part of his duties Executive shall (a) work to enhance
Employer's business relationship with American Express,
including, without limitation: evaluating Employer's existing
operations relating to, and services performed for, American
Express; seeking to increase the amount of business Employer
conducts with American Express; developing new products and
services that Employer could offer to American Express; and
evaluating strategic opportunities for enhancing the relationship
between Employer and American Express; and (b) provide advice,
assistance and support to Employer regarding strategy, product
development, sales and other matters for Employer, including,
without limitation, with respect to Employer's
internet/technology initiatives and health care industry business
units." (d) A new sentence is hereby inserted at the end of
paragraph 2, which shall read as follows:
"Executive shall be located in Miami, Florida; provided, however,
that Executive shall spend at least one week per month (or such
longer time as is determined to be necessary for the performance
of Executive's obligations hereunder) at Employer's corporate
offices in Atlanta, Georgia." (e) The first word of paragraph
4(a) shall be deleted and the following substituted therefor.
"For years prior to 1998, after".
(f) The last two sentences of paragraph 4(a) shall be deleted in
their entirety and the following substituted therefor:
"From and after January 1, 2000, Executive's bonus will consist
of two components. The first component shall be based on
Executive's success in increasing Employer's revenues related to
its business relationship with American Express ("American
Express Revenue"). In satisfaction of such component, Employer
shall pay Executive bonus monthly beginning February 2000 based
upon Net Revenue (defined below) for the prior month (to the
extent such number is a positive number) in the following
amounts: 1% of each dollar of Net Revenue in the event Net
Revenue is less than or equal to $200,000, 2.5% of each dollar of
Net Revenue in the event Net Revenue is between $200,001 and
$399,000 and 6% of each dollar of Net Revenue in the event Net
Revenue is greater than $400,000. Attached hereto as Annex I is a
schedule of American Express Revenue for 1999; all calculations
of American Express Revenue shall be made in accordance with such
annex. The second component shall be based on the Board's
evaluation of Executive's contribution to Employer's strategic
development and progress in the areas which have been Executive's
focus. At the beginning of each year, Executive shall prepare in
good faith and submit to the Board of Directors a statement of
goals ("Executive Goals") for the forthcoming year other than
with respect to American Express. Following the end of such year,
Executive shall prepare in good faith and review with the Board
of Directors a "self-appraisal" of such Executive's performance
(other than with respect to American Express) during such year
("Executive Appraisal"). The amount of the second component of
the bonus for any year shall be set by the Board of Directors
based upon such Executive Goals and Executive Appraisal for such
year. The second component of Executive's bonus shall be paid at
times consistent with the times when bonuses are paid to other
executives of Employer."
(g) Paragraph 4(c) shall be amended and restated in its entirety as
follows:
"(c) In the event Executive's employment is terminated by reason
of Cause (as herein defined) or the Executive's resignation, no
bonus (whether in respect of the first component or the second
component) for the calendar month (in the case of the first
component) or calendar year (in the case of the second component)
in which such termination or resignation occurs shall be payable
to Executive. If Executive's employment terminates for any other
reason (including expiration of this Agreement), Executive's
bonus for the month (in the case of the first component) or year
(in the case of the second component) in which termination occurs
shall be payable, but shall be prorated based upon the number of
days in such month (in the case of the first component) or year
(in the case of the second component) that Executive was employed
by Employer. Thereafter, no bonus (whether in respect of the
first component or the second component) shall be paid to
Executive."
(h) The following new paragraph (d) shall be added to the end of
paragraph 4:
"(d) For the purposes of this Agreement: (i) "Average Revenue"
shall mean, with respect to a calculation made in any calendar
year, an amount equal to (A) the revenues received during the
prior calendar year attributable to American Express divided by
(B) 12;(ii) "Additional Revenue" shall mean for any month, the
amount (if any) by which the American Express Revenue for such
month exceeds the Average Revenue; (iii) "Deficit Amount" shall
mean for any month, the amount (if any) by which the Average
Revenue exceeds the American Express Revenue for such month
(provided that for all periods prior to January 1, 2000, the
Deficit Amount shall be deemed to be zero); and (iv) "Net
Revenue" shall mean, for any month, the Additional Revenue for
such month minus the aggregate Deficit Amount for each prior
month that has not been applied to reduce Additional Revenue
and/or Net Additional Revenue for such month."1
(i) The second sentence of paragraph 7(b) shall be amended by adding after
the words "In the event of any such termination," the following:
"including, without limitation, a termination upon non-renewal by
Employer pursuant to Section 1 hereof,".
(j) The last sentence of paragraph 7(b) shall be deleted in its entirety.
Section 2. LIMITED EFFECT. Except as expressly amended hereby, all of the
provisions of the Employment Agreement shall continue to be, and shall remain,
in full force and effect in accordance with their terms. The parties agree that
the execution and effectiveness of this Amendment shall not constitute a
termination of employment of Executive. From and after the date hereof, each
reference in the Employment Agreement to "this Agreement", "hereunder", "herein"
or words of like import shall mean and be a reference to the Employment
Agreement as affected and amended hereby.
Section 3. GOVERNING LAW. THIS AMENDMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
Section 4. SECTION TITLES. Section titles contained in this Amendment are and
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
Section 5. COUNTERPARTS. This Amendment may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
Section 6. EXPENSES. Employer shall pay, in an amount not to exceed $10,000, the
reasonable fees and expenses of counsel to Executive incurred in connection with
the preparation, negotiation and execution of this Amendment.
IN WITNESS WHEREOF, this Amendment has been duly executed as
of the date first written above.
NATIONWIDE CREDIT, INC.
By:
Name:
Title:
Xxxxx Xxxxxxx
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1 The following are examples of calculations of Additional Revenue, Deficit
Amount and Net Revenue. Each assumes that American Express Revenue for 1999 is
$240 and that, therefore, the Average Revenue for 2000 is $20.
Example 1: American Express Revenue is $19 for January 2000. The Net Revenue for
January would equal -$1 (i.e., American Express Revenue for January ($19) less
Additional Revenue ($0) less the accrued Deficit Amount ($0)). Executive would
not be eligible to receive any bonus with respect to January and a Deficit
Amount of $1 would be carried over and applied against future Additional Revenue
and/or Net Revenue.
American Express Revenue for February 2000 is $25. The Net Revenue for February
would equal $4 (i.e., the American Express Revenue for February ($25) less the
Average Revenue ($20) less the Deficit Amount carried over from January ($1)).
Therefore, Executive would be eligible to receive a bonus with respect to such
$4 of Net Revenue.
Example 2: American Express Revenue is $26 for January 2000. The Net Revenue for
January would be $6 (i.e., the American Express Revenue for January ($26) less
the Average Revenue ($20) less the Deficit Amount ($0)) and Executive would be
eligible to receive a bonus on such amount.
American Express Revenue is $15 for February 2000. The Net Revenue for February
would be -$5 (i.e., the American Express Revenue for February ($15) less the
Average Revenue ($20) less the Deficit Amount ($0)). Executive would not be
eligible to receive any bonus with respect to February and a Deficit Amount of
$5 would be carried forward and applied against future Additional Revenue and/or
Net Revenue to reduce the amount eligible for bonus to Executive.
American Express Revenue is $22 for March 2000. The Net Revenue for such period
would equal -$3 (i.e. American Express Revenue for March ($22) less Average
Revenue ($20) less the Deficit Amount ($5)). Therefore, Executive would not be
eligible to receive any bonus with respect to March and a Deficit Amount of $3
would be carried over and applied against future Additional Revenue and/or Net
Revenue.
