Exhibit 10.43
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of 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 XXXXXX
XXXXXX, an individual, residing at (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 an
Executive Vice President and General Counsel 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 legal
matters and/or all other duties as 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, it corporate parent 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 Employees prior consent.
3. Term of Employment. The term of employment hereunder shall begin on
the date hereof and shall continue for a term of four (4) years, unless sooner
terminated in accordance with the terms of this Agreement (the "Term"). The
Company shall, upon ninety (90) days' prior written notice to the Employee, 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.
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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 and disability insurance plans 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.
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 is earned but remains unpaid.
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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 is earned but
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 Employee
commits a material breach of this Agreement, including failure to perform the
duties hereunder to the reasonable satisfaction of the Company, which breach
effects the business operations of Company, and which breach is not cured by
Employee after thirty (30) days prior written notice and opportunity to cure.
9. Termination without Cause. The Company may terminate the Employee's
employment relationship with the Company at any time without Cause upon at least
ninety (90) 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 all other compensation and benefits as such would have accrued
through the end of the then applicable Term. In addition, the Employee shall
receive a prorated portion of the Bonus earned up to the date of termination.
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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
thereafter, for the purposes of section (A) below, 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 or in the event that this Agreement is
terminated without cause, then for the period during which the Company continues
paying the Employee the Base Salary (as hereinafter defined), and for the
purposes of sections (B) and (C) below, for a period of one (1) year after
employment ceases, for any reason whatsoever, 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) interfere with the Company's relationship with any of its
employees or 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.
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 any termination of this Agreement.
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.
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:
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If to the Company: 000 Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
If to the Employee: ______________________________
______________________________
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 change the duties of the Employee hereunder without the Employee's
prior written consent.
IN WITNESS WHEREOF, this Agreement has been executed by the parties on
the date first above written.
Attest: NCO Portfolio Management, Inc.
__________________________ [SEAL] BY:_________________________________
Witness:
__________________________ _____________________________________
Xxxxxx Xxxxxx
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EXHIBIT "A"
EMPLOYEE COMPENSATION
XXXXXX XXXXXX
A. Base Salary: The Employee shall, during the Term, be paid an annual
base salary (the "Base Salary") of Fifty Thousand Dollars ($50,000).
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 and profitability goals as established by the
compensation committee of the Company, the Employee shall be entitled
to receive an annual bonus in an amount up to one hundred percent
(100%) of the Base Salary.
C. Stock Option Plan: The Employee, as part of his compensation hereunder,
shall receive an option to purchase up to 75,000 shares of the common
stock of the Company, at a price of $7.00 per share, in accordance with
the Company's Employee Stock Option Plan.
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