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EXHIBIT 10.7 EMPLOYMENT AGREEMENT BETWEEN THE COMPANY AND XXXXX X. XXXXXXXXX
EMPLOYMENT AGREEMENT
BY AND BETWEEN
COMPASS INTERNATIONAL SERVICES CORPORATION
AND
XXXXX XXXXXXXXX
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of August 29, 1998 by and between Compass International Services Corporation,
a Delaware corporation (the "Company") and Xxxxx Xxxxxxxxx ("Employee").
PRELIMINARY RECITALS
A. The Company, through its subsidiaries, is a provider of outsourced
business services on a national basis focusing on direct mail and accounts
receivable management services (the "Business").
B. The Company desires to employ Employee, and Employee desires to be
employed by the Company, all under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
of the parties hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. EMPLOYMENT.
1.1 ENGAGEMENT OF EMPLOYEE. The Company agrees to employ
Employee as General Counsel of the Company and Employee agrees to
accept such employment, all in accordance with the terms and conditions
of this Agreement.
1.2 DUTIES AND POWERS. During the Employment Period (as
defined herein), Employee will serve as the Company's General Counsel
and will have such responsibilities, duties and authorities, and will
render such services for the Company and its affiliates as the Company
shall from time to time reasonably direct; provided, however, that such
duties and responsibilities shall be commensurate with the position of
General Counsel of the Company. Employee shall report to the Company's
Chief Executive Officer. Employee agrees to serve the Company
diligently and faithfully during the Employment Period and to devote
Employee's best efforts, highest talents and skills and full time and
attention to the furtherance and success of the Business.
1.3 EMPLOYMENT PERIOD. Employee's employment under this
Agreement shall be for a period of three years beginning on September
1, 1998 (the "Initial Employment Period"). This Agreement shall
automatically renew for successive one-year periods (each one-year
period shall be referred to herein as a "Renewal Period") unless either
the Company or Employee, as the case may be, provides written notice to
the other party at least ninety (90) days prior to the termination of
any such period,
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stating its/her desire to terminate this Agreement. The Initial
Employment Period and each successive Renewal Period shall be referred
to herein together as the "Employment Period". Notwithstanding anything
to the contrary contained herein, the Employment Period is subject to
termination pursuant to SECTIONS 1.4, 1.5 AND 1.6 below.
1.4 TERMINATION OF EMPLOYMENT FOR CAUSE, DEATH OR DISABILITY.
The Company has the right to terminate Employee's employment under this
Agreement, by notice to Employee in writing at any time, for Cause (as
hereinafter defined), and such employment shall automatically terminate
upon the death or the Disability (as hereinafter defined) of Employee.
"Cause," as used herein, means the occurrence of any of the
following events:
(i) final non-appealable conviction of (A) a felony
or (B) any crime involving moral turpitude;
(ii) the willful failure of Employee to comply with
reasonable directions of the Company relating to Employee's
central duties as General Counsel after (A) written notice is
delivered to Employee describing such willful failure and (B)
Employee has failed to cure or take substantial steps to cure
such willful failure after a reasonable time period, as
determined by the Company in its reasonable discretion (not to
be less than 30 days);
(iii) any act by Employee in the course of her
employment constituting fraud or misappropriation of property
of the Company or its affiliates;
(iv) a material breach by Employee of any of the
terms, conditions or covenants set forth in SECTIONS 3.2, 3.3,
3.4 OR 3.5 of this Agreement if (A) written notice is
delivered to Employee describing such breach and (B) Employee
has failed to cure or take substantial steps to cure such
breach after a reasonable time period, as determined by the
Company in its reasonable discretion (not to be less than 30
days).
Employee shall be deemed to have a "Disability" for purposes
of this Agreement if she is unable to perform, by reason of physical or
mental incapacity, her material duties or obligations under this
Agreement, with or without reasonable accommodation, for a total period
of 90 days in any 360-day period. The Company shall determine,
according to the facts then available, whether and when the Disability
of the Employee has occurred. Such determination shall not be arbitrary
or unreasonable and the Company will, if possible, take into
consideration the expert medical opinion of a
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physician chosen by the Company, after such physician has completed an
examination of Employee. Employee agrees to make herself available for
such examination upon the reasonable request of the Company.
1.5 TERMINATION OF EMPLOYMENT BY EMPLOYEE. Employee has the right to
terminate her employment under this Agreement, by notice in writing to
Employer, for any reason, including but not limited to Good Reason. For
purposes of this Agreement, "Good Reason" shall mean, so long as
Employee has not been guilty of the conduct giving rise to the right to
terminate Employee for Cause, (i) the failure to elect Employee to the
office of General Counsel of the Company (or a comparable or superior
office), the removal of Employee from such position or the assignment
to Employee of any additional duties or responsibilities or a reduction
in Employee's duties or responsibilities which, in either case, are
inconsistent with the duties of General Counsel or an adverse change in
the Employee's reporting lines; (ii) the Company's requiring Employee
to be based at any office or location other than in the metropolitan
New York City area or to work more than three days per week at a
location other than Employee's home office, except for occasional
travel reasonably required in the performance of Employee's duties;
(iii) any decrease in the Employee's total compensation; (iv) a
material breach of this Agreement by the Company if (A) written notice
is delivered to the Company describing such breach and (B) the Company
has failed to cure or take substantial steps to cure such breach after
a reasonable period of time (not to exceed 30 days); and (v) the
termination or amendment by the Company of any employee benefit plan in
which the Employee is participating unless (A) the value of the
remaining compensation and benefits offered to Employee (including any
compensation and benefits offered in lieu of such plan) is not less
than prior to such termination or amendment, and (B) such plan is
terminated or amended as to all managerial employees of the Company.
1.6 TERMINATION DATE. The termination of Employee's employment shall be
effective on the Termination Date. The Termination Date shall be the
later of (i) the date of service of notice pursuant to Section 6.6
hereof by either Employer or Employee of the termination of Employee's
employment and (ii) the date Employee last performs service for the
Company pursuant to this Agreement, except that upon the death or
Disability of the Employee, the Termination Date shall be the date of
death or the date a determination of Disability is made pursuant to
Section 1.4 herein. The Employment Period shall terminate on the
Termination Date.
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2. COMPENSATION AND BENEFITS.
2.1 SALARY. In consideration of Employee performing her duties
under this Agreement during the Employment Period, the Company will pay
Employee a base salary at a rate of $200,000 per annum (the "Base
Salary"), payable in accordance with the Company's regular payroll
policy for salaried employees. The Base Salary may be increased (but
not decreased), from time to time during the Employment Period, as
determined by the Company, in its sole discretion. If the Employment
Period is terminated pursuant to SECTIONS 1.4 AND 1.5 above, then the
Base Salary for any partial year will be prorated based on the number
of days elapsed in such year during which services were actually
performed by Employee.
2.2 BONUS. Employee shall be eligible to earn an annual bonus
of up to 50% of Employee's Base Salary under the Company's incentive
compensation policies for executive employees, based upon such factors
as (i) the financial performance of the Company, and/or (ii) the
achievement of personal performance goals. Such criteria shall be
determined by the Company in its sole discretion (the "Bonus"). In
addition, for the year ending December 31, 1998, the Company hereby
agrees to pay Employee a bonus, pursuant to this section, which shall
not be less than $50,000 (which amount shall not be prorated). All
Bonuses awarded to Employee hereunder shall be payable in accordance
with Company policy.
2.3 OBLIGATIONS AFTER TERMINATION OF EMPLOYMENT.
(a) If the Company shall terminate Employee's
employment during the Employment Period for any reason (other
than for Cause pursuant to SECTION 1.4 of this Agreement),
Employee shall be entitled to receive severance compensation
equal to the sum of (A) continuance of her Base Salary for a
period of one year from the Termination Date (the "Severance
Period") and (B) her prorated bonus, as determined by the
Company in its good faith judgment, for the portion of any
fiscal year prior to the termination date ((A) and (B)
collectively, the "Severance Benefits"). The Severance
Benefits payable under (A) above shall be paid in equal
installments on the Company's normal payroll payment dates
occurring during the Severance Period.
If Employee shall voluntarily terminate her
employment for (i) Good Reason (as defined in Section 1.5) or
(ii) at any time within one year after a Change of Control (as
defined below), Employee shall be entitled to receive the
Severance Benefits.
The Executive shall have no duty to mitigate with
respect to any Severance Benefits by seeking or accepting
other employment.
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Subject to the foregoing, upon termination or
expiration of this Agreement for any reason, the Company shall
have no further obligations hereunder or otherwise with
respect to Employee's employment from and after the
termination or expiration date (except payment of Employee's
Base Salary and Bonus accrued through the date of termination
or expiration), and the Company shall continue to have all
other rights available hereunder (including, without
limitation, all rights under SECTIONS 3 AND 4 hereof at law or
in equity); provided that if Employee's employment terminates
by reason of Employee's death or disability, Employee or
Employee's estate shall have the right to exercise Employee's
stock options for a period of 12 months thereafter and all
options shall be immediately exercisable.
(b) For purposes of this Agreement, a "Change of
Control" of the Company shall be deemed to have occurred on
the first of any of the following:
(i) The acquisition by any individual,
entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of
thirty percent (30%) or more of either (A) the
then-outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or
(B) the combined voting power of the then-outstanding
voting securities of the Company entitled to vote
generally in the election of directors (the
"Outstanding Company Voting Securities"); provided,
however, that for purposes of this subsection (i),
the following acquisitions shall not constitute a
Change of Control: (A) any acquisition directly from
the Company other than in connection with the
acquisition by the Company or its affiliates of a
business, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any
corporation controlled by the Company, (D) any
acquisition by a lender to the Company pursuant to a
debt restructuring of the Company, or (E) any
acquisition by any corporation pursuant to a
transaction which complies with clauses (A), (B) and
(C) of subsection (iii) of this Section 2.3(b);
(ii) Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease
for any reason to constitute at least a majority of
the Board; provided, however, that any individual
becoming a director subsequent to the date hereof
whose election, or nomination for election by the
Company's shareholders, was approved
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by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be
considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of
office occurs as a result of an actual or threatened
election contest with respect to the election or
removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf
of a Person other than the Board;
(iii) Consummation of a reorganization,
merger or consolidation of the Company or any direct
or indirect subsidiary of the Company or sale or
other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in
each case, unless, following such Business
Combination, (A) all or substantially all of the
individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities immediately prior to such Business
Combination beneficially own, directly or indirectly,
more than sixty percent (60%) of, respectively, the
then-outstanding shares of common stock and the
combined voting power of the then-outstanding voting
securities entitled to vote generally in the election
of directors, as the case may be, of the corporation
resulting from such Business Combination (which shall
include for these purposes, without limitation, a
corporation which as a result of such transaction
owns the Company or all or substantially all of the
Company's assets either directly or through one or
more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to
such Business Combination, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities, as the case may be, (B) no Person
(excluding any corporation resulting from such
Business Combination or any employee benefit plan (or
related trust) of the Company or such corporation
resulting from such Business Combination and any
Person beneficially owning, immediately prior to such
Business Combination, directly or indirectly, 30% or
more of the Outstanding Common Stock or Outstanding
Voting Securities, as the case may be) beneficially
owns, directly or indirectly, thirty percent (30%) or
more of, respectively, the then-outstanding shares of
common stock of the corporation resulting from such
Business Combination, or the combined voting power of
the then outstanding voting securities of such
corporation entitled to vote generally in the
election of directors and (C) at least a majority of
the members of the board of directors of the
corporation resulting from such Business Combination
were members of the Incumbent Board at the time of
the execution of the initial agreement,
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or of the action of the Board, providing for such
Business Combination; or
(iv) Approval by the shareholders of the
Company of a complete liquidation or dissolution of
the Company other than to a corporation which would
satisfy the requirements of clauses (A), (B) and (C)
of Subsection (iii) of this Section 2.3(b), assuming
for this purpose that such liquidation or dissolution
was a Business Combination.
(c) For the avoidance of doubt, Severance Benefits
shall not be payable if Employee's employment is terminated by
reason of her death or Disability, but shall continue to be
payable during the Severance Period if her employment is
terminated without Cause, for Good Reason or within one year
after a Change of Control and she subsequently dies or becomes
disabled.
2.4 BENEFITS, EXPENSES AND PENSION PLAN. During the Employment
Period, the Company agrees to provide to Employee such fringe and other
employee benefits as are generally provided, from time to time, to
other senior officers of the Company, including without limitation
vacation, health and insurance benefits, and the opportunity to
participate in the Company's Employee Incentive Compensation Plan and
the Employee Stock Purchase Plan. In addition to the foregoing, the
Company hereby agrees to reimburse Employee for her reasonable
out-of-pocket expenses related to the performance of her duties
hereunder. The Company shall retain the right to discontinue or modify
any employee benefit program at any time, subject to Section 1.5(v)
hereof. The Company will reimburse Employee in accordance with Company
policy for her normal out-of-pocket expenses incurred in the course of
performing her duties hereunder.
2.5 OFFICE. Employee's office shall be located at the
Company's offices in the metropolitan New York City area. Employee
shall be entitled to work from her home office at least two days each
work week. Company shall reimburse Employee for out-of-pocket expenses
reasonably incurred in establishing a home office for the purpose of
performing her duties hereunder, including the purchase of office
furniture, computer equipment, software, telephone and facsimile
equipment and office supplies, and maintaining that office.
2.6 OTHER. If the Initial Employment Period commences prior to
September 16, 1998 and Employee's options to purchase stock of General
Electric Company ("GE Options") are cancelled, then the Company agrees
to pay Employee $15,000, which amount represents the gain Employee
would have realized had she exercised her GE Options on September 16,
1998.
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3. COVENANTS.
3.1 EMPLOYEE'S ACKNOWLEDGMENT. Employee acknowledges that:
(i) the Company has made known its intention to be
engaged in the Business during the Employment Period and
thereafter;
(ii) Employee will occupy a position of trust and
confidence with the Company after the date of this Agreement,
and during the Employment Period and Employee's employment
under this Agreement, Employee will become familiar with the
Company's proprietary and confidential information concerning
the Company and the Business;
(iii) the agreements and covenants contained in this
SECTION 3 are essential to protect the Company and the
goodwill of the Business and are a condition precedent to the
Company's entering into this Agreement;
(iv) Employee's employment with the Company has
special, unique and extraordinary value to the Company and the
Company would be irreparably damaged if Employee were to
provide services to any person or entity in violation of the
provisions of this Agreement; and
(v) Employee has means to support herself and her
dependents other than by engaging in the Business as conducted
by the Company during the Restrictive Period, and the
provisions of this SECTION 3 will not impair such ability.
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3.2 NON-COMPETE. Employee hereby agrees that during the
Employment Period and through the period ending with the first
anniversary of the last day of the Employment Period (collectively, the
"RESTRICTIVE PERIOD"), she shall not (except on behalf of the Company
during the Employment Period), for any reason whatsoever, directly or
indirectly, whether individually or as an officer, director,
shareholder, owner, partner, joint venturer, employee, independent
contractor, consultant or advisor to or of any entity, or in any other
capacity:
(i) engage, participate or invest in any business
that derives more than fifty percent (50%) of its revenues
from the provision of outsourced business services on a
national basis focusing on direct mail and accounts receivable
management services anywhere in the United States of America
(the "Territory"); provided, however, that nothing contained
herein shall be construed to prevent Employee from investing
in up to 5% of the outstanding stock of any competing
corporation that is widely-traded and listed on a recognized
national, international or regional securities exchange or
traded in the U.S. over-the-counter market, but only if
Employee is not actively involved in and does not render
consulting services to the business of said corporation, and
provided further that nothing contained herein shall be
construed to prevent Employee from providing services to or
otherwise working for or in a law firm or financial services
company.
(ii) sell or provide any products or services that
are directly competitive to products or services sold or
provided by the Business to, or solicit for the purpose of
selling or providing such products or services to, any person
or entity that was a customer of the Company at any time
during the one-year period ending on the Termination Date or
that was actively being solicited by the Company to become a
customer of the Company at any time during such period,
(iii) solicit for employment or engagement, or
influence or induce to leave the Company's employment, or
knowingly cause to be employed or engaged, any person who is
employed or engaged by the Company in a managerial capacity on
the Termination Date or during the Restrictive Period, unless
such person has been out of the employ of the Company for at
least 180 days; provided, that the Employee shall be permitted
to solicit and hire any member of her immediate family, or
(iv) enter into, or call upon or request non-public
information for the purpose of entering into, an Acquisition
Transaction with any entity with respect to which the Company
has made an offer or proposal for, or entered into discussions
or negotiations for, or evaluated with the intent of making a
proposal
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for, an Acquisition Transaction, within the six-month period
immediately preceding the Termination Date.
For purposes of this Agreement, an "Acquisition Transaction"
means a merger, consolidation, purchase of material assets, purchase of
a material equity interest, tender offer, recapitalization,
accumulation of shares, proxy solicitation or other business
combination.
3.3 INTELLECTUAL PROPERTY RIGHTS. Employee will promptly
communicate, disclose and transfer to the Company free of all
encumbrances and restrictions (and will execute and deliver any papers
and take any action at any time deemed reasonably necessary by the
Company to further establish such transfer) all of Employee's right,
title and interest in and to all ideas, discoveries, inventions and
improvements relating to the Business created, originated, developed or
conceived of by Employee solely or jointly with others during the term
of Employee's employment hereunder, whether or not during normal
working hours. Employee agrees that all right, title and interest in
and to all such ideas, discoveries, inventions and improvements shall
belong solely to the Company, whether or not they are protected or
protectible under applicable patent, trademark, service xxxx, copyright
or trade secret laws. Employee agrees that all work or other material
containing or reflecting any such ideas, discoveries, inventions or
improvements shall be deemed work made for hire as defined in Section
101 of the Copyright Act, 15 U.S.C.ss.101. Such transfer shall include
all patent rights, copyrights, trademark and service xxxx rights, and
trade secret rights (if any) to such ideas, discoveries, inventions and
improvements in the United States and in all other countries. Employee
further agrees, at the expense of the Company, to take all such
reasonable actions and to execute and deliver all such assignments and
other lawful papers relating to any aspect of the prosecution of such
rights in the United States and all other countries as the Company may
request at any time during the Employment Period or after termination
thereof.
3.4 INTERFERENCE WITH RELATIONSHIPS. Other than in the
performance of her duties hereunder, during the Restrictive Period,
Employee shall not, directly or indirectly, as employee, agent,
consultant, stockholder, director, co-partner or in any other
individual or representative capacity solicit or encourage any present
or future customer, supplier or other third party to terminate or
otherwise alter his, her or its relationship with the Company with
respect to the Business.
3.5 CONFIDENTIAL INFORMATION. Except to the extent Employee
reasonably deems it necessary in the performance of her duties
hereunder, during the Restrictive Period and thereafter, Employee shall
keep secret and retain in strictest confidence, and shall not, without
the prior written consent of the Company, directly or indirectly
furnish, make available or disclose to any third party or use for the
benefit of herself or
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any third party, any Confidential Information. As used in this
Agreement, "Confidential Information" shall mean any information
relating to the business or affairs of the Company or the Business,
including, but not limited to, information relating to financial
statements, employees, customers, suppliers, pricing, marketing,
equipment, programs, strategies, analyses, profit margins, or other
proprietary information of or used by the Company or any subsidiary of
Company in connection with the Business; provided, however, that
Confidential Information shall not include any information which is in
the public domain or becomes known in the industry through no wrongful
act on the part of Employee. Employee acknowledges that the
Confidential Information is vital, sensitive, confidential and
proprietary to the Company.
3.6 BLUE-PENCIL. If any court of competent jurisdiction shall
at any time deem the Restrictive Period too lengthy or the Territory
too extensive, the other provisions of this SECTION 3 shall
nevertheless stand, the Restrictive Period herein shall be deemed to be
the longest period permissible by law under the circumstances and the
Territory herein shall be deemed to comprise the largest territory
permissible by law under the circumstances. The court in each case
shall reduce the time period and/or territory to permissible duration
or size.
3.7 RETURN OF COMPANY MATERIALS UPON TERMINATION. Employee
acknowledges that all price lists, sales manuals, catalogs, binders,
customer lists and other customer information, supplier lists and other
supplier information, financial information, memoranda, correspondence
and other records or documents including information stored on computer
disks or in computer readable form, containing Confidential Information
prepared by Employee or coming into Employee's possession by virtue of
Employee's employment by the Company is and shall remain the property
of the Company and that upon termination of Employee's employment
hereunder, Employee shall return immediately to the Company all such
items in Employee's possession, together with all copies thereof.
3.8 REMEDIES. Employee acknowledges and agrees that the
covenants set forth in this SECTION 3 (collectively, the "RESTRICTIVE
COVENANTS") are reasonable and necessary for the protection of the
Company's business interests, that irreparable injury will result to
the Company if Employee breaches any of the terms of said Restrictive
Covenants, and that in the event Employee breaches any such Restrictive
Covenants, the Company will have no adequate remedy at law. Employee
accordingly agrees that in the event Employee breaches any of the
Restrictive Covenants, the Company shall be entitled to immediate
temporary injunctive and other equitable relief, without bond and
without the necessity of showing actual monetary damages. Nothing
contained herein shall be construed as prohibiting the Company from
pursuing any other remedies
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available to it for such breach or the threat of such a breach by
Employee, including the recovery of any other damages which it is able
to prove.
If the Company asserts a claim or brings an action against the
Employee for violation of any covenant set forth in Section 3 and
Employee prevails on such claim or in such action, the Company shall
pay the attorneys' fees and costs reasonably incurred by Employee in
connection with such claim or action.
3.9 COMPANY. For purposes of this SECTION 3, the term
"Company" shall include the Company and its respective subsidiaries,
affiliates, assignees and any successors in interest of the Company or
its subsidiaries.
4. EFFECT OF TERMINATION. If Employee or the Company should terminate
Employee's employment for any reason, then, notwithstanding such termination,
those provisions contained in SECTIONS 3, 4 AND 5 hereof shall remain in full
force and effect.
5. INCOME TAX TREATMENT. Employee and the Company acknowledge that it
is the intention of the Company to deduct all amounts paid under SECTION 2
hereof as ordinary and necessary business expenses for income tax purposes.
Employee agrees and represents that she will treat all such amounts as required
pursuant to all applicable tax laws and regulations, and should she willfully
fail to report such amounts as required, she will indemnify and hold the Company
harmless from and against any and all taxes, penalties, interest, costs and
expenses, including reasonable attorneys' and accounting fees and costs, which
are incurred by Company directly or indirectly as a result thereof.
6. MISCELLANEOUS.
6.1 ASSIGNMENT. No party hereto may assign or delegate any of
its rights or obligations hereunder without the prior written consent
of the other party hereto; provided, however, that the Company shall
have the right to assign all or any part of its rights and obligations
under this Agreement (i) to any affiliate of the Company to which the
Business of the Company is assigned at any time, any subsidiary or
affiliate of the Company or any surviving entity following any merger
or consolidation of any of those entities with any entity other than
the Company or (ii) in connection with the sale of the Business by the
Company. Except as otherwise expressly provided herein, all covenants
and agreements contained in this Agreement by or on behalf of any of
the parties hereto shall bind and inure to the benefit of the
respective legal representatives, heirs, successors and assigns of the
parties hereto whether so expressed or not.
6.2 ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this Agreement and all other agreements entered into by the
parties hereto on the date hereof set forth the entire understanding of
the parties, and supersede and preempt all
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prior oral or written understandings and agreements, with respect to
the subject matter hereof.
6.3 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement is
held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of this Agreement.
6.4 AMENDMENT; MODIFICATION. No amendment or modification of
this Agreement and no waiver by any party of the breach of any covenant
contained herein shall be binding unless executed in writing by the
party against whom enforcement of such amendment, modification or
waiver is sought. No waiver shall be deemed a continuing waiver or a
waiver in respect of any subsequent breach or default, either of a
similar or different nature, unless expressly so stated in writing.
6.5 GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with, and all questions concerning the
construction, validity, interpretation and performance of this
Agreement shall be governed by, the laws of the State of New York,
without giving effect to provisions thereof regarding conflict of laws.
6.6 NOTICES. All notices, demands or other communications to
be given or delivered hereunder or by reason of the provisions of this
Agreement shall be in writing and shall be deemed to have been properly
served if (a) delivered personally, (b) delivered by a recognized
overnight courier service, (c) sent by certified or registered mail,
return receipt requested and first class postage prepaid, or (d) sent
by facsimile transmission followed by a confirmation copy delivered by
a recognized overnight courier service the next day. Such notices,
demands and other communications shall be sent to the addresses
indicated below:
(a) If to Employee:
Xxxxx Xxxxxxxxx, Esq.
00 Xxxxxxxxx Xx.
Xxxxxxxxxx, Xxxxxxxxxxx 00000
(b) If to the Company:
Compass International Services Corporation
Xxx Xxxx Xxxxx
Xxxxx 0000
00
00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
with a copy to:
Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
or to such other address or to the attention of such other person as
the recipient party has specified by prior written notice to the
sending party. Date of service of such notice shall be (i) the date
such notice is personally delivered or sent by facsimile transmission
(with issuance by the transmitting machine of a confirmation of
successful transmission), (ii) three business days after the date of
mailing if sent by certified or registered mail or (iii) one business
day after date of delivery to the overnight courier if sent by
overnight courier.
6.7 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same Agreement.
6.8 DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive
headings in this Agreement are inserted for convenience of reference
only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement. The use of the word "including" in
this Agreement shall be by way of example rather than by limitation.
The Preliminary Recitals set forth above are incorporated by reference
into this Agreement.
6.9 NO STRICT CONSTRUCTION. The language used in this
Agreement will be deemed to be the language chosen by the parties
hereto to express their mutual interest, and no rule of strict
construction will be applied against any party hereto.
14
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COMPANY:
COMPASS INTERNATIONAL SERVICES CORPORATION
By:
Its:
EMPLOYEE:
Xxxxx Xxxxxxxxx
