EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated this 1st day of
June, 1999, to be effective as of the first (1st) day of August, 1999 (the
"Effective Date") is made and entered into by and between NCO FINANCIAL SYSTEMS,
INC., a Pennsylvania corporation, with its principal offices at 000 Xxxxxxxxxxxx
Xxxxxx, Xxxx Xxxxxxxxxx, XX 00000 (the "Company") and XXXXXX XXXXXXX, an
individual, residing at _________________________ (the "Employee").
1. Employment. The Employee has heretofore been employed and the
Company hereby acknowledges its desire to continue to employ the Employee as
Divisional Chief Executive Officer, International Operations (formally known as
FCA International Ltd. ("FCA") collection business ("International Division")).
The Employee hereby agrees to continue his employment with the Company in
accordance with the terms and conditions of 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 entire business
operations of the Company and all other duties the Executive Officers of the
Company or its parent company may from time to time assign to him. The Employee
shall use his best efforts to the performance of his duties hereunder and to the
promotion of the business and interests of the Company and any of its corporate
subsidiaries or affiliated companies. The Employee's office of employment shall
be in the Montreal area, subject to customary travel responsibilities.
3. Term of Employment. The term of employment hereunder shall begin on
the Effective Date and continue for a term of three (3) years, unless sooner
terminated (the "Term"). The Company shall 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.
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.
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 insurance plan 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 four (4) weeks paid
vacation on a per annum basis during the Term and any extension thereof 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.
In addition, the Employee shall have the use of a car leased by the Company at a
cost not to exceed $650.00 per month (exclusive of any value added taxes). The
Company shall also reimburse the Employee for reasonable and necessary out of
pocket automobile expenses incurred in performing his duties hereunder.
B. Business Expenses. The Company will pay, or reimburse the
Employee for, all ordinary and reasonable out-of-pocket business expenses,
2
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. In addition, so long as the Employee is employed by the
Company, the Company shall pay for the Employee's golf club membership (annual
dues and expenses of approximately $5,000) and health club membership ($1,000
annually).
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) due for the period up to
the Employee's date of death which remains unpaid.
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)
for the period up to the date of termination which remains unpaid, provided that
3
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 one
hundred twenty (120) 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 of Employment.
(a) In addition to termination pursuant to paragraph 7, the Company,
following prior written notice to the Employee, may discharge the Employee and
thereby terminate his employment hereunder for cause as follows: (i) habitual
intoxication; (ii) drug addiction; (iii) conviction of a felony; (iv)
adjudication as an incompetent; (v) violation of any reasonable rule or
regulation that may be established by the Company from time to time for the
conduct of the Company's business, as set forth in the Company's employee
handbook after thirty (30) days notice and opportunity to cure; (vi)
misappropriation of
4
Company funds or fraudulent acts; or (vii) the Employee's breach of this
Agreement in any material respect, after thirty (30) days written notice and
opportunity to cure.
In the event that the Company shall discharge the Employee pursuant to
this paragraph 8, the Company shall not have any further obligations or
liability under this Agreement, except that the Company shall pay to Employee
the portion, if any, of the Employee's compensation (which shall be his regular
Base Salary) due to the Employee for the period up to the date of termination
which remains unpaid.
(b) If termination by the Company during the Term or any extension
thereof is without cause, if the Company does not renew this Agreement at the
end of the Term or any renewal thereof or if the Employee resigns from his
employment during the Term (but not to avoid a "for cause" termination), the
Company shall, as severance, pay the Employee the net present value of Base
Salary for a period of two (2) years plus any Bonus amount which may become
payable to the Employee.
9. 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.
10. Restrictions. In consideration of the Company's continued
employment of the Employee in accordance herewith and for other good and
valuable consideration, the Employee agrees to the following restrictions:
5
A. Non-Competition. The Employee shall not, unless acting with the
prior written consent of the Board of Directors, the Chief Executive Officer or
President of the Company, directly or indirectly:
(a) During the Term and any extension thereof, and for a period of
three (3) years thereafter (the "Covenant Term"),
(i) own, manage, operate, finance, join, control or participate
in the ownership, management, operation, financing or control of, or be
connected as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise with any business or enterprise engaged
in the same or similar collection business as the Company or any other business
engaged in by the Company or any of its subsidiaries if the Employee provided
any material services for the same in all those geographic areas in which the
Employee performed services for the Company; or
(ii) use or permit his name to be used in connection with any
business or enterprise engaged in the same collection business as the Company or
any other business engaged in by the Company or any of its subsidiaries if the
Employee provided any material services for the same in all those geographic
areas in which the Employee performed services for the Company; and
B. Non-Interference. The Employee agrees that during the Term and any
extension thereof, during the Covenant Term and for a period of two (2) years
after the Covenant Term, the Employee shall not, unless acting with the prior
written consent of the Board of Directors, the Chief Executive Officer or the
President of the Company, directly or indirectly:
6
(1) solicit business from or for, any person, company or other
entity which at any time during the Employee's employment by the Company was a
client or customer of the Company if such business or services are of the same
general character as those engaged in or performed by the Company or any other
business engaged in by any of the Company's subsidiaries if the Employee
provided any services for the same;
(2) solicit for employment or hire any of the employees of the
Company; or
(3) 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.
For good and valuable consideration previously delivered to the
Employee as well as the increase in the Employee's Base Salary (as shown on
Exhibit "A") the Employee has agreed and does agree to the restrictions set
forth in paragraph 8 and this paragraph 9 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.
11. Equitable Relief; Survival.
(a) The Employee acknowledges that the restrictions contained in
paragraphs 9 and 10 hereof are, in view of the nature of the business of the
Company, reasonable and necessary to protect the legitimate interests of the
Company, and that any violation of any provisions of such paragraphs will result
7
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 paragraph 15 hereof.
(b) Survival of Covenants. The provisions of paragraphs 9, 10 and 12
shall survive the termination of this Agreement other than as a result of a
material breach by the Company which breach shall not be cured by the Company
within thirty (30) days after written notice of such breach from the Employee or
the termination of the Employee by the Company without cause.
12. Representation by the Employee. The Employee hereby warrants and
represents to the Company that he is not bound by or subject to any sort of
restriction which would prohibit him from accepting employment with the Company,
such as a restrictive covenant, non-interference or non-competition agreement
related to his previous employment position or positions.
8
13. 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.
14. 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.
15. Notices. All notices, request, demands, claims and other
communications hereunder will be in writing. Any notices, requests, demands,
claims or communications hereunder shall be deemed fully given if such are sent
by registered or certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
If to the Company: 000 Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
9
with copy to: Xxxxxx Xxxxxx, Esquire
General Counsel
[same address as above]
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.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Canada.
17. Contents of Contract; Amendment and Assignment. This Agreement sets
forth the entire understanding between the parties hereto with respect to the
subject matter hereof and supersedes and is instead of all other employment
arrangement between the Employee and the Company. This Agreement cannot be
changed, modified or terminated except upon written amendment duly executed by
the parties hereto. All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, representatives, successors and assigns of the parties hereto, except
that the duties and responsibilities of the Employee hereunder are of a personal
nature and shall not be assignable in whole or in part by the Employee. 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, such work place being the Company's Montreal office.
10
18. Prior Employment Agreements. The Employee and the Company hereby
acknowledge that this Agreement shall supersede any existing employment
agreement that the Employee has with FCA or the Company.
IN WITNESS WHEREOF, this Agreement has been executed by the parties on
the date first above written.
Attest: NCO Financial systems, Inc.
__________________________________[SEAL] BY:_______________________________
Witness:
________________________________ _______________________________
Xxxxxx XxXxxxx
11
EXHIBIT "A"
EMPLOYEE COMPENSATION
XXXXXX XXXXXXX
A. Base Salary: The Employee shall, during the Term, be paid an annual base
salary (the "Base Salary") Two Hundred Thousand Canadian Dollars
(C$200,000). 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.
B. Bonus: In addition to the Base Salary, so long as the Employee satisfies
the duties and obligations of his employment and the International division
attains certain financial goals as established by the Company, the Employee
shall be entitled to receive an annual bonus in an amount up to Fifty
Thousand Canadian Dollars (C$50,000).
C. Stock Option Plan: The Employee, as part of his employment by the Company,
has received at the time his employment commenced, an option to purchase up
to 25,000 shares of the common stock of the Company, at a price of $21.00
per share, in accordance with the Company's Employee Stock Option Plan.
12
