EXHIBIT 10.12
EMPLOYMENT AGREEMENT
BY AND BETWEEN
BRMC OF DELAWARE, INC.
AND
H. XXXX XXXXXXX
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of
March __, 1998, by and between BRMC of Delaware, Inc., a Delaware corporation
(the "Company"), and H. Xxxx Xxxxxxx ("Employee").
PRELIMINARY RECITALS
A. Reference is made to that certain Stock Purchase Agreement, dated as of
October 3, 1997, as amended (the "Purchase Agreement"), by and among the
Company, Compass International Services Corporation, a Delaware corporation
("Compass"), and the stockholders of the Company identified on Schedule A to the
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Purchase Agreement, providing for the purchase (the "Purchase") by Compass of
all of the outstanding capital stock of the Company, whereby the Company shall
become a wholly-owned subsidiary of Compass.
B. The Company provides accounts receivable management services and
telephonic check drafting services (the "Business").
C. Employee has been a substantial stockholder of the Company since its
inception, and has extensive knowledge and a unique understanding of the
Business and has developed longstanding business relationships with customers
and other business constituencies who are involved in the Business.
D. The Company desires to employ Employee, and Employee desires to be
employed by the Company, all under the terms and conditions set forth herein.
E. It is a condition to the consummation of the Purchase Agreement that
the Company and Employee enter into this Agreement.
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.
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1.1 Engagement of Employee. The Company agrees to employ Employee as
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the President and Chief Executive Officer ("CEO") 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. At all times during the Employment Period (as
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defined herein), Employee will serve as the Company's President and CEO and
will have such responsibilities, duties and authority, and will render such
services for the Company and its affiliates as the Board of Directors of
Compass (the "Board") shall from time to time reasonably direct; provided,
however, that such duties, responsibilities, authority
and services shall be commensurate with the position of President and CEO
of the Company. Employee agrees diligently and faithfully to serve the
Company 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
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shall be for a period of five years beginning as of the date of this
Agreement (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, stating its/his 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 SECTION 1.5 below.
1.4 Place of Employment. Employee's services hereunder shall be
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rendered at such locations in Destin, Florida or the greater Pensacola,
Florida metropolitan area as shall be determined by the Board, subject to
such travel as may be reasonably required in connection with the Business.
Employee shall not be required to relocate to any other area without his
consent.
1.5 Termination of Employment for Cause, Death or Disability. The
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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 be terminated
upon the death or the Disability (as hereinafter defined) of Employee. Any
such termination shall be effective upon the date of service of such notice
pursuant to SECTION 6.7 hereof, in the case of termination for Cause, or
immediately upon the death or Disability of Employee, and the Employment
Period shall terminate as of the effective date of such termination.
"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
and lawful directions of the Board 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 Board in
its reasonable discretion (not to be less than 60 days);
(iii) the good faith determination by the Board in the exercise
of its reasonable judgment that Employee has committed an act or acts
in the course of his employment constituting fraud or misappropriation
of Company property;
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(iv) a material breach by Employee of any of the terms,
conditions or covenants set forth in SECTION 3 of this Agreement; or
(v) a material breach by Employee of any of the terms or
conditions 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 Board in its reasonable discretion (not
to be less than 60 days).
Employee shall be deemed to have a "Disability" for purposes of this
Agreement if he is unable to perform, by reason of physical or mental
incapacity, his 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 Board 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 Board will, if
possible, take into consideration the expert medical opinion of a physician
mutually agreed upon by Employe and the Company, after such physician has
completed an examination of Employee. Employee agrees to make reasonable
efforts to make himself available for such examination upon the reasonable
request of the Company.
2. Compensation and Benefits.
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2.1 Salary. In consideration of Employee performing his duties under
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this Agreement during the Employment Period, the Company will pay Employee
a base salary at a rate of $100,000 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 Compensation
Committee of the Board (the "Compensation Committee"), in its sole
discretion, and in any event will be increased on January 1 of each year
beginning January 1, 1999 to reflect corresponding increases in the United
States Department of Labor, Bureau of Labor Statistics, Consumer Price
Index, All Urban Consumers, United States City Average, all items (1982-
88=100). If warranted by the growth of the Business, in the sole judgment
of the Compensation Committee, the Base Salary will be increased as of
January 1, 1999 to the level of the Base Salary of the other CEO's of the
Founding Companies (as defined in the Purchase Agreement). If the
Employment Period is terminated pursuant to SECTION 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, and all such prorated Base Salary which remains unpaid, together
with accrued but unused vacation and sick pay, if any, shall be paid by the
Company to Employee within five days after the effective date of
termination of the Employment Period.
2.2 Bonus. Employee shall participate in Compass' Executive
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Compensation Program (the "Bonus Program"), under which Employee shall be
eligible to earn an annual bonus of up to 100% of Employee's Base Salary
based upon such factors as (i) the financial performance of the Company,
(ii) the financial performance of Compass, and/or (iii) the achievement of
personal performance goals. The criteria and/or goals for
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the Bonus Program shall be established by the Compensation Committee at the
beginning of each fiscal year after consultation with Employee. All
bonuses awarded to Employee hereunder shall be payable in accordance with
Company policy. If the Employment Period is terminated pursuant to SECTION
1.5 above then the foregoing bonus for any partial year will be determined
based on annualizing results to the date of the termination and will be
prorated based upon the number of days elapsed in such year during which
services were actually performed by Employee, and shall be paid within five
days of the date of such termination.
2.3 Compensation After Termination of Employment.
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(a) If the Company shall terminate Employee's employment during
the Employment Period for any reason (other than for Cause pursuant to
SECTION 1.5 of this Agreement), or if Employee shall voluntarily
terminate his employment during the Employment Period and within 60
days after a Constructive Termination (as defined below), Employee
shall be entitled to receive severance compensation equal to (A) the
amount of his Base Salary for a period of two years commencing on the
last day of the Employment Period (the "Severance Period"), (B) (i) if
permitted under Company's group health insurance coverage,
continuation at the cost of Company of coverage thereunder for
Employee and, if dependent coverage is then in effect, his covered
dependents (subject to such changes in coverage as shall apply to
Company's employees generally and provided that if the cost of
dependent coverage prior to termination of employment was being paid
by Employee, such cost shall continue to be payable by Employee) or
(ii) if not so permitted, reimbursement by the Company of the premiums
for group health insurance coverage otherwise payable by Employee
under COBRA, until the end of the Severance Period or until other
employment is obtained, whichever occurs first, and (C) his pro rated
bonus, as determined by the Compensation Committee in its good faith
judgement, for the period of any partial fiscal year immediately
preceding the termination date in accordance with SECTION 2.2 above
((A), (B) and (C) collectively, the "Severance Benefits"). The
Severance Benefits payable under (A) and (B)(ii) above shall be paid
in equal installments on the Company's normal payroll payment dates
occurring during the first sixty (60) days of the Severance Period.
The Severance Benefits payable under (C) above shall be paid in a lump
sum in accordance with SECTION 2.2 above. It shall be a condition to
Employee's right to receive the Severance Benefits that (i) Employee
shall execute and deliver to the Company a written separation
agreement, in form and substance reasonably satisfactory to the
Company (but not inconsistent with this Agreement), which agreement
shall, among other things, contain a general release by Employee of
all claims arising out of Employee's employment or termination of
employment (but excluding claims for indemnification for third party
claims pursuant to the Company's articles of incorporation and/or
bylaws), and (ii) Employee shall be in compliance with all of
Employee's obligations which expressly survive termination hereof,
including without limitation those arising under SECTIONS 3 AND 4
hereof. In addition, the Company may, as a condition to such
Severance Benefits, require that Employee provide consulting services
to the Company on a reasonable basis
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during the first sixty (60) days of the Severance Period, provided
that the timing of such consulting services shall not unreasonably
interfere with Employee's ability to obtain other full-time
employment. The Severance Benefits are intended to be in lieu of all
other payments to which Employee might otherwise be entitled in
respect of termination of Employee's employment without Cause (except
for the payments required under SECTION 2.1). Except as expressly
provided above, no fringe or other employee benefits shall be payable
during or after the Severance Period.
(b) If Employee's employment shall be terminated pursuant to
SECTION 1.5, the Company shall have no further obligations hereunder
or otherwise with respect to Employee's employment from and after the
effective date of the termination of the Employment Period (except for
payments required under SECTION 2.1), 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).
(c) For the avoidance of doubt, Severance Benefits shall not be
payable if Employee's employment is terminated by reason of his death
or Disability, but shall continue to be payable during the Severance
Period if his employment is terminated without Cause or by reason of
Constructive Termination and he subsequently dies or becomes disabled.
(d) "Constructive Termination" as used herein, shall be deemed to
have occurred if the Company (i) demotes Employee to a position below
that of President and CEO of the Company or assigns the Employee
duties and responsibilities that are not commensurate with such
position, (ii) reduces Employee's Base Salary or materially reduces
his employee benefits and prerequisites, taken in the aggregate, or
(iii) requires Employee to relocate in violation of SECTION 1.4.
2.4 Benefits, Expenses and Pension Plan. During the Employment
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Period, the Company agrees to provide to Employee such fringe and other
employee benefits as are generally provided, from time to time, to senior
officers of the subsidiaries of Compass (upon no less favorable terms as
provided to such officers), including without limitation, vacation, health
and insurance benefits, and the opportunity to participate in the Compass
Stock Option Plan and Compass Stock Purchase Plan. The Company shall
retain the right to discontinue or modify any employee benefit program at
any time. The Company will reimburse Employee in accordance with Company
policy for his normal out-of-pocket expenses incurred in the course of
performing his duties hereunder.
3. Covenants.
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3.1 Employee's Acknowledgment. Employee acknowledges that:
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(i) the Company is and will be engaged in the Business during the
Employment Period and thereafter;
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(ii) Employee is one of a limited number of persons who will
manage the Business;
(iii) 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;
(iv) 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;
(v) 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
(vi) Employee has means to support himself and his dependents
other than by engaging in the Business, or a business substantially
similar to the Business, and the provisions of this SECTION 3 will not
impair such ability.
3.2 Non-Compete. Employee hereby agrees that during the Employment
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Period and through the period ending with the second anniversary of the
last day of the Employment Period (collectively, the "RESTRICTIVE PERIOD"),
he shall not, 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 which is
competitive with the Business anywhere within 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
publicly-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,
(ii) sell or provide any competitive products or services to,
or solicit for the purpose of selling or providing any competitive
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 last
day ("Termination Date") of the Employment Period or that was known by
Employee to have been actively being solicited by the Company to
become a customer of the Company at any time during such period,
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(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 his 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 Company has made an offer or proposal
for, or entered into discussions or negotiations for, or evaluated
with the intent of making a proposal 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
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communicate, disclose and transfer to the Company free of all encumbrances
and restrictions (and will execute and deliver any papers and take any
reasonable 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 here under, 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.(S)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
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of his duties hereunder, during the Restrictive Period, Employee shall not,
directly or indirectly, as employee, agent, consultant, stockholder,
director, partner or in any other individual or representative capacity,
solicit or intentionally encourage any present or future customer, supplier
or other third party to terminate or otherwise alter his, her or its
relationship with the Company.
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3.5 Confidential Information. Other than in the performance of his
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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 himself or 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 Compass, the Company or any other subsidiary of
Compass 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 and Compass.
3.6 Blue-Pencil. If any court of competent jurisdiction shall at any
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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
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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, together with all
copies thereof, in Employee's possession.
3.8 Remedies. Employee acknowledges and agrees that the covenants
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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 or threatens to breach any such Restrictive
Covenants, the Company will have no adequate remedy at law. Employee
accordingly agrees that in the event Employee breaches or threatens to
breach any of the Restrictive Covenants, the Company shall be entitled to
immediate temporary injunctive and other equitable relief, and without the
necessity of showing actual monetary damages. Nothing contained herein
shall be construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or the threat of such a breach by
Employee, including the recovery of any damages which it is able to prove.
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3.9 Company. For purposes of this SECTION 3, the term "Company"
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shall include the Company and its respective subsidiaries, affiliates,
permitted assignees and any permitted successors in interest of the Company
or its subsidiaries or affiliates.
4. Effect of Termination. If Employee or the Company should terminate
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Employee's employment for any reason, then, notwithstanding such termination,
those provisions contained in SECTIONS 2.3, 3, 4, 5 AND 6 hereof shall remain in
full force and effect.
5. Income Tax Treatment. Employee and the Company acknowledge that it is
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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 he will treat all such amounts as required pursuant
to all applicable tax laws and regulations.
6. Miscellaneous.
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6.1 Life Insurance. The Company may at its discretion and at any
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time apply for and procure as owner and for its own benefit and at its own
expense, insurance on the life of Employee in such amounts and in such form
or forms as the Company may choose. Employee shall cooperate with the
Company in procuring such insurance and shall, at the request of the
Company, submit to such medical examinations, supply such information and
execute such documents as may be reasonably and customarily required by the
insurance company or companies to whom the Company has applied for such
insurance. Employee shall have no interest whatsoever in any such policy
or policies, except that, upon the termination of Employee's employment
hereunder, Employee may purchase any and all such insurance from the
Company for an amount equal to the actual premiums thereon previously paid
by the Company.
6.2 Assignment. No party hereto may assign or delegate any of its
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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 upon written notice to Employee (i) to any affiliate of the
Company to which the Business of the Company is assigned at any time
(provided that the Company and Compass shall remain liable for all
obligations of the Company hereunder) or any surviving entity following any
merger or consolidation of the Company and any other entity 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,
permitted successors and assigns of the parties hereto whether so expressed
or not.
6.3 Entire Agreement. Except as otherwise expressly set forth
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herein, this Agreement sets forth the entire understanding of the parties,
and supersedes and preempts all prior oral or written understandings and
agreements, with respect to the subject matter hereof.
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6.4 Severability. Whenever possible, each provision of this
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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.
6.5 Amendment; Modification. No amendment or modification of this
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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.
6.6 Governing Law. This Agreement shall be construed and enforced in
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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 Florida, without giving effect to provisions thereof
regarding conflict of laws.
6.7 Notices. All notices, demands or other communications to be
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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 nationally
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
nationally 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:
Mr. H. Xxxx Xxxxxxx
00000 Xxxx Xxxxxxx Xxxxx Xxxxxxx
Xxxxx X0
Xxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxx, Xx., Esq.
Facsimile No.: (000) 000-0000
and
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Xxxxxxxx Xxxxxxxx & Xxxxxx
00 X. Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
(b) If to the Company:
BRMC of Delaware, Inc.
c/o Compass International Services Corporation
0 Xxxxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: President
with a copy to:
Compass International Services Corporation
0 Xxxxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: President
with a copy to:
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
or to such other address or facsimile number or to the attention of such
other person or entity 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) five 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.
6.8 Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
6.9 Descriptive Headings; Interpretation. The descriptive headings in
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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.
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6.10 No Strict Construction. The language used in this Agreement will be
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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.
6.11 Arbitration. Any controversy or claim arising out of or relating to
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this Agreement, the making, interpretation or the breach thereof, other than a
claim solely for injunctive relief for any alleged breach of the provisions of
SECTION 3 as to which the parties shall have the right to apply for relief in
any court of competent jurisdiction, shall be resolved by arbitration in
Pensacola, Florida, in accordance with the Federal Arbitration Act and the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association. Judgment upon the award rendered by the arbitrators may
be entered in any court having jurisdiction thereof and any party to the
arbitration may, if such party so elects, institute proceedings in any court
having jurisdiction for the specific performance of any such award. Without
limiting the generality of the foregoing sentence, the claims to which this
provision shall apply include, but are not limited to: (i) any claims arising
out of or related to this Employment Agreement or breach thereof ; (ii) any
claims arising under any federal, state or local statute or the common law of
any state, regarding compensation or employee benefits, or discrimination,
retaliation, harassment, or denial of equal employment opportunity based on sex,
race, color, religion, national origin, disability, age, marital status, or any
other category protected by law; (iii) any claims arising under the common law
of the United States or any state relating to Employee's employment with
Company, including without limitation claims alleging negligence, defamation,
public policy, tort, infliction of emotional distress, fraud, or
misrepresentation; or (iv) any civil claims that Company may have against
Employee relating to Employee's employment with Company. Anything herein to the
contrary notwithstanding, this SECTION 6.11 shall not apply to: (i) any claim by
Employee for workers' compensation benefits or unemployment compensation
benefits; or (ii) any claim by Company for injunctive or equitable relief,
including without limitation claims related to the enforcement of SECTION 3
hereof, which may be brought in any court of competent jurisdiction. EMPLOYEE
AND COMPANY EXPRESSLY WAIVE ANY RIGHT TO RESOLVE ANY DISPUTE COVERED BY THIS
SECTION BY FILING SUIT IN COURT FOR TRIAL BY A JUDGE OR JURY. The arbitrator
shall include in any award in the prevailing party's favor costs and expenses of
the arbitration. In the event the arbitrator does not rule in favor of the
prevailing party in respect of all the claims alleged by such party, the
arbitrator shall include in any award in favor of the prevailing party the
amount of his or its reasonable costs and expenses of the arbitration as he
deems just and equitable under the circumstances. Except as provided above, each
party to the arbitration shall bear his or its own attorney's fees and expenses
and the parties shall bear equally all other costs and expenses of the
arbitration.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
XXXXX RECEIVABLES MANAGEMENT CORPORATION
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Its: Secretary
---------------------------------------
EMPLOYEE:
/s/ H. Xxxx Xxxxxxx
---------------------------------------------
H. XXXX XXXXXXX
For good and valuable consideration, the receipt of which is hereby
acknowledged, the undersigned hereby unconditionally guarantees payment and
performance of the obligations of the Company hereunder.
COMPASS INTERNATIONAL SERVICES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxxxx
Chairman and CEO
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