EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made this 16th day of April 1999, by and
between NCO Financial Systems, Inc., a Pennsylvania corporation, (hereinafter
called "Company"), and Xxxxxx X. Xxxxxx, III, an individual (hereinafter called
"Employee").
W I T N E S S E T H:
WHEREAS, Employee's present employer, Co-Source Corporation,
as successor to M&M Acquisition, Inc. ("CSC"), is being acquired by NCO Group,
Inc. ("NCO"), the parent company of Company (the "Acquisition");
WHEREAS, Company wishes to continue to employ Employee and
Employee wishes to continue in the employ of Company on the terms and conditions
contained in this Agreement.
NOW, THEREFORE, subject to the closing of the Acquisition, and
in consideration of the facts, mutual promises and covenants contained herein,
intending to be legally bound hereby, Company and Employee agree as follows:
1. Definitions. As used herein, the following terms shall have
the meanings set forth below unless the context otherwise requires.
"Affiliate" shall mean a person who with respect to any
entity, directly or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, such entity;
"Annual Bonus" shall mean the bonus payments set forth in
Section 5(b), as such amount may be adjusted from time to time.
"Base Compensation" shall mean the annual rate of
compensation set forth in Section 5(a), as such amount may be adjusted from time
to time.
"Board" shall mean the Board of Directors of NCO and/or
Company.
"Business" shall mean the business conducted by Company or
CSC in the past and on the date of execution of this Agreement, including
without limitation any business in the collection of commercial accounts
receivable and including business activities in developmental stages, business
activities which may be developed by Company, or any Subsidiary or corporate
parent thereof or entity sharing a common corporate parent with Company, during
the period of Employee's
employment by Company, and all other business activities which flow from a
reasonable expansion of any of the foregoing, including any business engaged in
by Company subsequent to the execution of this Agreement in which Employee
participates.
"Cause" shall mean any one or more of the following:
(a) if Employee is convicted of a felony involving
fraud, theft or embezzlement or has entered a plea of
nolo contendere (or similar plea) to a charge of such
an offense; or
(b) if Employee commits any act of fraud or
deliberate misappropriation relating to or involving
Company; or
(c) habitual intoxication or drug addiction; or
(d) if Employee commits a material breach of this
Agreement which breach, after 20 days' prior written
notice, is not cured.
"Commencement Date" shall have the meaning specified in
Section 4 hereof.
"Confidential Information" shall have the meaning specified
in Section 14(c) hereof.
"Disability" shall mean Employee's inability, for a period
of 120 consecutive days, or more than 210 days in the aggregate over a
consecutive period of eighteen months, to perform the essential duties of
Employee's position, with or without any reasonable accommodation required by
law, due to a mental or physical impairment which substantially limits one or
more major life activities.
"Restricted Area" shall have the meaning specified in
Section 14(a) hereof.
"Restricted Period" shall mean:
(a) For purposes of Section 14(a)(A), from the
date hereof until three (3) years after Employee's
employment with Company is either terminated by
Employee or by Company for Cause, or for the remaining
term of this
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Agreement, but in no event less than two (2) years, if Employee's employment
with Company is terminated by Company without Cause;
(b) For purposes of Section 14(a)(B) and 14(c), from
the date hereof until five (5) years after Employee's employment is either
terminated by Employee or by Company for Cause, or for the remaining term of
this Agreement, but in no event less than two (2) years, if Employee's
employment with Company is terminated by Company without Cause;
"Subsidiary" shall mean any corporation in which Company
owns directly or indirectly 50% or more of the Voting Stock or 50% or more of
the equity; or any other venture in which it owns either 50% or more of the
voting rights or 50% or more of the equity.
"Term of Employment" shall mean the period specified in
Section 4 hereof as the same may be modified in accordance with this Agreement.
2. Employment. Company hereby employs Employee and Employee
hereby accepts employment by Company for the period and upon the terms and
conditions specified in this Agreement.
3. Office and Duties.
(a) Employee initially shall serve as Executive Vice
President of NCO and Divisional Chief Executive Officer of Company's Commercial
Services Division (the "Division"). In such capacity, Employee shall render such
services as are necessary and desirable to protect and advance the best
interests of NCO and Company, acting, in all instances, under the supervision of
and in accordance with the policies set by the Board. Employee will be
responsible for and provide senior management services relating to the
commercial accounts collection and professional financial services and related
marketing of the services of Company and ongoing senior management services
relating to all aspects of Company's general administration. In addition,
Employee will render such other executive services and perform such other
executive duties for Company and NCO and its direct and indirect wholly owned
Subsidiaries thereof as the Boards of Directors of NCO and/or Company may from
time to time reasonably request of Employee. Employee may, in addition, hold
such offices with NCO or Company which may from time to time be offered to
Employee. Employee's authority shall be subject at all times to the direction
and control of the Chief Executive Officer and the Boards of Directors of
Company and NCO and to the Boards' discretion to determine the policies of
Company and NCO.
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(b) For as long as Employee shall remain an employee of
Company, Employee's entire working time, energy, skill and best efforts shall be
devoted to the performance of Employee's duties hereunder in a manner which will
faithfully and diligently further the business and interests of Company.
Employee may engage in charitable, civic, fraternal, trade and professional
association activities that do not interfere with Employee's obligations to
Company, but Employee shall not be employed by any other for-profit business
without prior written consent of Board, which shall not be unreasonably
withheld.
(c) Employee's services will be conducted at Company's
headquarters in New Orleans, Louisiana area and at such other places as
Employee's duties may require; provided however, that Employee shall not be
required by Company to relocate his principal residence without his consent, and
shall not be required to perform services in any location that is greater than
fifty (50) miles from his principal residence, except in the course of normal
daily business travel.
4. Term. Employee shall be employed by Company for an initial
Term of Employment (the "Initial Term"), commencing on the effective date of the
Acquisition (the "Commencement Date"), and ending on May 31, 2002, unless sooner
terminated as hereinafter provided. Unless either party elects to terminate this
Agreement at the end of the Initial Term by giving the other party written
notice of such election at least one hundred twenty (120) days before the
expiration of the Initial Term, the Term of Employment shall be deemed to have
been extended for an additional term of one (1) year (the "Additional Term")
commencing on the day after the expiration of the Initial Term. At any time
during the Additional Term, either party may terminate this Agreement by giving
the other party written notice of such election at least sixty (60) days prior
to such termination.
5. Compensation and Benefits.
(a) For all of the service rendered by Employee to
Company, Employee shall receive Base Compensation at the gross annual rate of
Two Hundred Fifty Thousand Dollars ($250,000.00) payable in installments in
accordance with Company's regular payroll practices in effect from time to time.
The amount of Base Compensation payable hereunder may, but shall not be
required, to be further increased by such other amounts as may be determined in
the discretion of the Board.
(b) In addition to the foregoing compensation, the
Employee shall be entitled to an annual bonus in an amount up to One Hundred
Thirty Thousand Dollars ($130,000.00) based upon certain EBITDA goals for the
Division (but not including EBITDA earned non-CSC business of the Division)
established by mutual agreement of Company and Employee. This bonus may be
increased based on the
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actual financial performance of the Division based upon mutual agreement of
Company and Employee.
(c) As additional compensation, the Employee shall receive
an option to purchase up to 40,000 shares of the common stock of NCO in
accordance with the terms of NCO's Stock Option Plan at the closing price of
such stock on the effective day of the closing of the Acquisition. NCO may, at
its election, issue additional shares to the Employee from time to time.
6. Fringe Benefits. As an inducement to Employee to commence
employment hereunder, and in consideration of Employee's covenants under this
Agreement, Employee shall be entitled to the benefits set forth below (the
"Fringe Benefits") during the Term of Employment:
(a) Employee shall be eligible to participate in any
health, life, accident or disability insurance, sick leave or other benefit
plans or programs made available to other similarly situated employees of
Company as long as they are kept in force by Company and provided that Employee
meets the eligibility requirements and other terms, conditions and restrictions
of the respective plans and programs.
(b) Employee shall be entitled to four (4) weeks paid
vacation and personal days during each year, subject to Company's generally
applicable policies. All vacation and personal days must be used within the year
in which available and may not be carried over into subsequent years. Employee
shall give oral or written notice prior to the commencement of any vacation in
excess of five (5) business days.
(c) Company will reimburse Employee for all reasonable
expenses incurred by Employee in connection with the performance of Employee's
duties hereunder upon receipt of documentation therefor in accordance with
Company's regular reimbursement procedures and practices in effect from time to
time. Payment to Employee will be made upon presentation of expense vouchers in
such detail as Company may from time to time require.
7. Disability. If Employee suffers a Disability, Company may
terminate Employee's employment relationship with Company at any time thereafter
by giving Employee ten (10) days written notice of termination. Thereafter,
Company shall have no obligation to Employee for Base Compensation, Annual
Bonus, Fringe Benefits or any other form of compensation or benefit to Employee,
except as otherwise required by law or by benefit plans provided at Company
expense, other than (a) amounts of Base Compensation accrued through the date of
termination, (b) a pro rata portion of the Annual Bonus to the date of
termination of employment, to the extent payable hereunder, and (c)
reimbursement of appropriately documented expenses
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incurred by Employee before the termination of employment, to the extent that
Employee would have been entitled to such reimbursement but for the termination
of employment.
8. Death. If Employee dies during the Term of Employment, the
Term of Employment and Employee's employment with Company shall terminate as of
the date of Employee's death. Company shall have no obligation to Employee or
Employee's estate for Base Compensation, Annual Bonus, Fringe Benefits or any
other form of compensation or benefit, except as otherwise required by law or by
benefit plans provided at Company expense, other than (a) amounts of Base
Compensation that have accrued through the date of Employee's death, (b) a pro
rata portion of the Annual Bonus to the date of Employee's death, to the extent
payable hereunder, and (c) reimbursement of appropriately documented expenses
incurred by Employee before Employee's death, to the extent that Employee would
have been entitled to such reimbursement but for his death.
9. Termination for Cause. Company may terminate Employee's
employment relationship with Company at any time for Cause. Upon termination of
Employee under this Section 9, Company shall have no obligation to Employee for
Base Compensation, Annual Bonus, Fringe Benefits or other form of compensation
or benefits other than (a) amounts of Base Compensation accrued through the date
of termination, and (b) reimbursement of appropriately documented expenses
incurred by Employee before the termination of employment, to the extent that
Employee would have been entitled to such reimbursement but for the termination
of employment.
10. Termination without Cause. Company may terminate
Employee's employment relationship with Company at any time without Cause.
Notwithstanding termination of Employee' employment under this Section 10,
Employee shall continue to be eligible to receive and Company shall continue to
pay Employee's Base Compensation in accordance with standard payroll practices,
a prorated portion of the Annual Bonus and all other compensation and benefits
as such amounts would have accrued through the end of the Initial Term or, if
such termination occurs during the Additional Term, through the end of the
Additional Term.
11. Termination by Employee. Employee may terminate his
employment at any time upon at least 120 days' prior written notice to Company.
If Employee terminates his employment, Company shall have no obligation to
Employee for Base Compensation, Annual Bonus, Fringe Benefits or other form of
compensation or benefits other than (a) amounts of Base Compensation accrued
through the date of termination, and (b) reimbursement of appropriately
documented expenses incurred by Employee before the termination of employment,
to the extent that Employee would have been entitled to such reimbursement but
for the termination of employment.
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12. Consideration. Employee agrees and acknowledges that
Employee is agreeing to be bound by the terms of this Agreement, including
without limitation the provisions of Sections 13 and 14, in consideration of
Company's agreement to pay in full all amounts due as Base Compensation and
other amounts due after Employee's termination without Cause in accordance with
Section 10 of this Agreement; and Employee further agrees and acknowledges that
the Fringe Benefits described above constitute full, complete and adequate
consideration for Employee's obligations hereunder.
13. Company Property. All advertising, sales, manufacturers'
and other materials or articles or information, including without limitation
data processing reports, computer programs, software, customer information and
records, business records, price lists or information, samples, or any other
materials or data of any kind furnished to Employee by Company or developed by
Employee on behalf of Company or at Company's direction or for Company's use or
otherwise in connection with Employee's employment hereunder, are and shall
remain the sole property of Company, including in each case all copies thereof
in any medium, including computer tapes and other forms of information storage.
If Company requests the return of such materials at any time during or at or
after the termination of Employee's employment, Employee shall deliver all
copies of the same to Company immediately. Notwithstanding the foregoing,
Employee may retain records relevant to the filing of Employee's personal income
taxes and Company shall grant Employee reasonable access during normal business
hours, to business records of Company relevant to the discharge of Employee's
duties as an officer of Company or any other legitimate noncompetitive business
purpose.
14. Noncompetition, Trade Secrets, Etc. Employee hereby
acknowledges that, during and solely as a result of his employment by Company,
Employee will have access to confidential information and business and
professional contacts. In consideration of such special and unique opportunities
afforded by Company to Employee as a result of Employee's employment and the
other benefits referred to in Section 12 of this Agreement, Employee hereby
agrees as follows:
(a) For the duration of the Restricted Period, Employee
shall not directly or indirectly (A) engage in (as a principal, shareholder,
partner, director, officer, agent, employee, consultant or otherwise) or be
financially interested in any business operating within the United States (the
"Restricted Area"), which is involved in or any other business activities which
are the same as, similar to or in competition with the Business, or with any
business activities carried on by Company, or being definitely planned by
Company, at the time of the termination of Employee's employment; provided
however, that nothing contained in this Section 14 shall prevent Employee
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from holding for investment no more than three percent (3%) of any class of
equity securities of a company whose securities are publicly traded on a
national securities exchange or in a national market system; or (B) induce or
attempt to influence any employee, customer, independent contractor or supplier
of Company to terminate employment or any other relationship with Company.
(b) During the Term of Employment, Employee shall not,
directly or indirectly, disclose or otherwise communicate to any of the clients,
customers or accounts of Company, its Affiliates or any Subsidiary thereof that
he is considering terminating, or has decided to terminate, employment with
Company. Following the termination of Employee's employment, Company shall have
sole discretion to determine who may notify the clients, customers or accounts
of Company of the termination of Employee's employment, and the form, substance
and timing of such notification; provided, however, that Company shall not
disseminate any notice of Employee's termination for any reason other than Cause
which is unfavorable to Employee's professional or personal reputation or
career. Company shall inform Employee of the identity of all persons or entities
to be so notified and provide to Employee a copy of any written notice to such
persons or entities at least ten business days prior to its dissemination to
allow Employee to object to or otherwise challenge the content of the written
notice and/or its dissemination.
(c) Employee shall not use for Employee's personal benefit,
or disclose, communicate or divulge to, or use for the direct or indirect
benefit of any person, firm, association or company other than Company, any
"Confidential Information" which term shall mean any information regarding the
business methods, business policies, policies, procedures, techniques, research
or development projects or results, historical or projected financial
information, budgets, trade secrets, or other knowledge or processes of or
developed by Company or any names and addresses of customers or clients or any
data on or relating to past, present or prospective Company customers or clients
or any other confidential information relating to or dealing with the business
operations, or activities of Company as such relate specifically to commercial
collection services, made known to Employee or learned or acquired by Employee
while in the employ of Company, but Confidential Information shall not include
information otherwise lawfully known generally by or readily accessible to the
trade or the general public. All memoranda, notes, lists, records, files,
documents and other papers and other like items (and all copies, extracts and
summaries thereof) made or compiled by Employee or made available to Employee
concerning the business of Company shall be Company's property and shall be
delivered to Company promptly upon the termination of Employee's employment with
Company or at any other time on request. The foregoing provisions of this
Subsection 14(c) shall apply during and after the period when Employee is an
employee of Company and shall be in addition to (and not a limitation of) any
legally applicable protections of Company's interest in confidential
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information, trade secrets and the like. At the termination of Employee's
employment with Company, Employee shall return to Company all copies of
Confidential Information in any medium, including computer tapes and other forms
of data storage. Notwithstanding the foregoing, Employee may retain records
relevant to the filing of Employee's personal income taxes and Company shall
grant Employee reasonable access during normal business hours, to business
records of Company relevant to Employee's discharge of Employee's duties as an
officer of Company or other legitimate non-competitive business purpose.
Notwithstanding the requirements of this paragraph 14(c), should Employee leave
his employment and work in a position that does not violate any of the
restrictions contained in this Agreement, then Employee shall have the right to
use Confidential Information, provided, however, that such right shall not
permit Employee to remove any documents or materials from Company that are
deemed Confidential Information.
(d) Any and all writings, inventions, improvements,
processes, procedures and/or techniques which Employee may make, conceive,
discover or develop, either solely or jointly with any other person or persons,
at any time when Employee is an employee of Company, whether or not during
working hours and whether or not at the request or upon the suggestion of
Company, which relate to or are useful in connection with the Business or with
any business now or hereafter during the time of Employee's employment hereunder
carried on or known by Employee to be contemplated by Company, including
developments or expansions of its present fields of operations, shall be the
sole and exclusive property of Company. Employee shall make full disclosure to
Company of all such writings, inventions, improvements, processes, procedures
and techniques, and shall do everything necessary or desirable to vest the
absolute title thereto in Company. Employee shall write and prepare all
specifications and procedures regarding such inventions, improvements,
processes, procedures and techniques and otherwise aid and assist Company so
that Company can prepare and present applications for copyright or Letters
Patent therefor and can secure such copyright or Letters Patent wherever
possible, as well as reissues, renewals, and extensions thereof, and can obtain
the record title to such copyright or patents so that Company shall be the sole
and absolute owner thereof in all countries in which it may desire to have
copyright or patent protection. Employee shall not be entitled to any additional
or special compensation or reimbursement regarding any and all such writings,
inventions, improvements, processes, procedures and techniques.
(e) Employee acknowledges that the restrictions contained in
the foregoing Subsections (a), (b), (c) and (d), in view of the nature of the
business in which Company is engaged, are reasonable and necessary in order to
protect the legitimate interests of Company, that their enforcement will not
impose a hardship on Employee or significantly impair Employee's ability to earn
a livelihood, and that any violation thereof would result in irreparable
injuries to Company. Employee therefore
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acknowledges that, in the event of Employee's violation of any of these
restrictions, Company shall be entitled to obtain from any court of competent
jurisdiction preliminary and permanent injunctive relief as well as damages and
an equitable accounting of all earnings, profits and other benefits arising from
such violation, which rights shall be cumulative and in addition to any other
rights or remedies to which Company may be entitled.
(f) If the Restricted Period or the Restricted Area
specified in Subsections (a) and (b) above should be adjudged unreasonable in
any proceeding, then the period of time shall be reduced by such amount or the
area shall be reduced by the elimination of such portion or both such reductions
shall be made so that such restrictions may be enforced for such time and in
such area as is adjudged to be reasonable. If Employee violates any of the
restrictions contained in the foregoing Subsections (a) or (b), the Restricted
Period shall be extended by a period equal to the length of time from the
commencement of any such violation until such time as such violation shall be
cured by Employee to the satisfaction of Company. Company shall have the right
and remedy to require Employee to account for and pay over to Company all
compensation, profits, monies, accruals, increments or other benefits derived or
received by Employee as the result of any transactions constituting a breach of
this Section 14, and Employee shall account for and pay over such amounts to
Company upon Company's request therefor. Employee hereby expressly consents to
the jurisdiction of any court within the Commonwealth of Pennsylvania to enforce
the provisions of this Section 14, and agrees to accept service of process by
mail relating to any such proceeding. Company may supply a copy of Section 14 of
this Agreement to any future or prospective employer of Employee or to any
person to whom Employee has supplied information if Company determines in good
faith that there is a reasonable likelihood that Employee has violated or will
violate such Section.
15. Prior Agreements. Employee represents to Company that there
are no restrictions, agreements or understandings, oral or written, to which
Employee is a party or by which Employee is bound that prevent or make unlawful
Employee's execution or performance of this Agreement. Upon this Agreement
becoming effective as a result of the Acquisition being completed, any
employment agreement between Employee and CSC or any of its affiliates and any
rights of Employee therein contained shall automatically terminate.
16. Consent to Jurisdiction/Arbitration.
(a) Any legal suit, action, claim, proceeding or
investigation arising out of or relating to this Agreement may be instituted in
the Xxxxxxxxxx County Court of Common Pleas of the Commonwealth of Pennsylvania,
and each of the parties hereto waives any objection which party may now or
hereafter have to such venue of
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any such suit, action, claim, proceeding or investigation, and irrevocably
submits to the jurisdiction of any such court. Any and all service of process
and any other notice in any such suit, action, claim, proceeding or
investigation shall be effective against any party if given by registered or
certified mail, return receipt requested, or by any other means of mail which
requires a signed receipt, postage prepaid, mailed to such party as herein
provided. Nothing herein contained shall be deemed to affect the right of any
party to serve process in any manner permitted by law or to commence legal
proceedings or otherwise proceed against any other party in any jurisdiction
other than Pennsylvania.
(b) With the exception of Company's right to injunctive or
equitable relief described in paragraph 14(e) above, any dispute, controversy or
claim arising out of or relating to this Agreement or the breach or alleged
breach of this Agreement shall be settled by arbitration in Xxxxxxxxxx County,
Pennsylvania in accordance with the commercial arbitration rules, then
obtaining, of the American Arbitration Association, and judgment upon any such
arbitration award rendered by the arbitrators may be entered in any state or
federal court sitting in Pennsylvania. If the parties to any such dispute,
controversy or claim are unable to agree upon an arbitrator or arbitrators, then
three arbitrators shall be appointed by the American Arbitration Association, as
it may determine, in accordance with the commercial arbitration rules and
practices, then obtaining, of such Association. If the parties to any such
dispute, controversy or claim shall agree upon two arbitrators, but such parties
or such arbitrators shall be unable to agree upon a third arbitrator, then only
such third arbitrator shall be appointed as aforesaid by the American
Arbitration Association. Each of the parties and the arbitrators shall use its
best efforts to keep confidential the existence of any dispute and arbitration
proceedings and all information relating thereto or submitted in connection
therewith and, in the event of judicial proceedings for the enforcement of this
paragraph or any award pursuant thereto, shall cooperate to seal the record of
any such arbitration or judicial proceedings.
(c) In the event judicial proceedings or arbitration
proceedings are commenced, the prevailing party shall be entitled to an award
for its reasonable legal fees and costs incurred in relation to such
proceedings.
17. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on
the part of either party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of
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such right, remedy, power or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
(b) Controlling Law. This Agreement and all questions
relating to its validity, interpretation, performance and enforcement
(including, without limitation, provisions concerning limitations of actions),
shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania, notwithstanding any conflict-of-laws doctrines of
such jurisdiction to the contrary, and without the aid of any canon, custom or
rule of law requiring construction against the draftsman.
(c) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received only when
personally delivered, on the day specified for delivery when deposited with a
recognized national or regional courier service for delivery to the intended
addressee or five (5) days following the day when deposited in the United States
mails, first class postage prepaid, addressed as set forth below:
If to Employee:
Xx. Xxxxxx X. Xxxxxx, III
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
with a copy, given in the manner prescribed above, to:
______________________________________________
______________________________________________
If to Company:
Xxxxxxx Xxxxxxx
Chief Executive Officer
NCO Financial Systems, Inc.
000 Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
with a copy, given in the manner prescribed above, to:
Xxxxxx Xxxxxx
Executive Vice-President and General Counsel
NCO Group, Inc.
000 Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
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In addition, notice by mail shall be by air mail if
posted outside of the continental United States. Any party may alter the address
to which communications or copies are to be sent by giving notice of such change
of address in conformity with the provisions of this Section for the giving of
notice.
(d) Binding Nature of Agreement. This Agreement shall be
binding upon Company and shall inure to the benefit of Company, its present and
future Subsidiaries, Affiliates, successors and assigns including any transferee
of the business operation, as a going concern, in which Employee is employed and
shall be binding upon Employee, Employee's heirs and personal representatives.
None of the rights or obligations of Employee hereunder may be assigned or
delegated, except that in the event of Employee's death or Disability, any
rights of Employee hereunder shall be transferred to Employee's estate or
personal representative, as the case may be. Company may assign its rights and
obligations under this Agreement in whole or in part to any one or more
Affiliates or successors, but no such assignment shall relieve Company of its
obligations to Employee if any such assignee fails to perform such obligations.
(e) Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original as against any party whose signature appears thereon, and all of which
shall together constitute one and the same instrument. This Agreement shall
become binding when such number of counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
(f) Provisions Separable. The provisions of this Agreement
are independent of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable in whole or
in part.
(g) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the employment of
Employee by Company, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing. Notwithstanding the foregoing, nothing herein shall limit
the application of any generally applicable Company policy, practice, plan or
the terms of any manual or handbook
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applicable to Company's employees generally, except to the extent the foregoing
directly conflict with this Agreement, in which case the terms of this Agreement
shall prevail.
(h) Section Headings. The Section headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
(i) Number of Days. Except as otherwise provided herein, in
computing the number of days for purposes of this Agreement, all days shall be
counted, including Saturdays, Sundays and holidays; provided, however, that if
the final day of any time period falls on a Saturday, Sunday or holiday on which
federal banks are or may elect to be closed, then the final day shall be deemed
to be the next day which is not a Saturday, Sunday or such holiday.
(j) Gender, Etc. Words used herein, regardless of the number
and gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(k) Survival. All provisions of this Agreement which by
their terms survive the termination of Employee's employment with Company,
including without limitation the covenants of Employee set forth in Sections 13
and 14 and the obligations of Company to make any post-termination payments
under this Agreement, shall survive termination of Employee's employment by
Company and shall remain in full force and effect thereafter in accordance with
their terms.
[signature lines are on the following page]
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IN WITNESS WHEREOF, the parties have duly executed and
delivered this Agreement as of the date first above written.
NCO FINANCIAL SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
/s/ Xxxxxx X. Cefaulu, III
-------------------------------------
XXXXXX X. XXXXXX, III
COMPANY AND EMPLOYEE AGREE AND ACKNOWLEDGE THAT THIS EMPLOYMENT AGREEMENT AND
THE COMPANY'S OBLIGATION TO HIRE THE EMPLOYEE, ARE CONDITIONED UPON COMPANY
COMPLETING THE ACQUISITION.
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