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EXHIBIT 10.3
AGREEMENT AND RELEASE
This Agreement and Release ("Agreement"), dated as of April 13, 1999
is between Leeds Xxxxxxx ("Xxxxxxx") and Compass International Services
Corporation (the "Company"), a corporation organized under the laws of Delaware.
WHEREAS, Xxxxxxx entered into an Employment Agreement dated as of
March 4, 1998 with National Credit Management Corp. ("NCMC"), which was merged
into a wholly-owned subsidiary of the Company (the "Employment Agreement"); and
WHEREAS, the Company subsequently requested that Xxxxxxx accept
reassignment to headquarters in New York to act as Chief Financial Officer
("CFO") of the Company pursuant to the terms of his Employment Agreement and he
agreed to do so; and
WHEREAS, Xxxxxxx voluntarily tendered his resignation as the CFO of
the Company effective April 13, 1999 (the "Termination Date"), which was duly
accepted by the Company; and
WHEREAS, the Company and Xxxxxxx wish to settle, compromise and
resolve any and all employment-related claims Xxxxxxx has or may have against
the Company or any of the Compass Released Parties (as defined below);
NOW, THEREFORE, Xxxxxxx and the Company agree as follows:
1. In full and final settlement of all amounts due to Xxxxxxx, the
Company agrees to continue to pay his Base Salary at the rate of $150,000 per
annum for the period from the Termination Date through October 12, 2000 (the
"Severance Period") in accordance with the Company's normal payroll practices,
subject to any applicable withholdings. The Company will also pay Xxxxxxx for
any accrued vacation time and reimburse the cost of COBRA premiums for Xxxxxxx
(and any dependents of Xxxxxxx covered under the Company's health plan
immediately prior to the Termination Date) for a period of eighteen months from
the Termination Date, provided Xxxxxxx applies for such coverage, is eligible
for such coverage and provided
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further that if he becomes eligible to be covered under any other
non-contributory group health plan (as an employee or otherwise) which does not
have a significant exclusion for pre-existing conditions, the Company shall have
no further obligations to pay COBRA premiums. The amounts specified in this
paragraph are in full and final payment of any and all sums due to Xxxxxxx on
account of wages, bonuses, salary, severance pay, vacation pay, benefits or any
other form of compensation.
2. Xxxxxxx hereby resigns his positions as an employee, officer or
director of any and all of the subsidiaries and affiliates of the Company,
effective as of the Termination Date, except that he shall continue to serve as
a member of the Board of Directors of the Company. It is agreed that Xxxxxxx
will be entitled to the normal compensation, if any, paid to outside directors
of the Company from the date of this Agreement forward.
3. In exchange for the amounts provided for in this Agreement and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Xxxxxxx, as Releasor, on behalf of himself, his heirs,
executors, administrators, representatives and assigns, hereby forever
unconditionally and irrevocably releases and discharges the Company, NCMC, their
affiliates, subsidiaries (wholly-owned or not), predecessors, successors and
assigns, and each and all of their respective current and former officers,
directors, employees, trustees, agents, attorneys, representatives, partners,
advisors and shareholders (collectively and individually, the "Compass Released
Parties"), from any and all claims, charges, causes of action, complaints,
agreements, promises, contracts, undertakings, covenants, guarantees,
grievances, liabilities, obligations, damages, rights, expenses, debts and
demands of any kind whatsoever, in law or equity, known or unknown, and of
whatsoever kind or nature arising out of, in connection with or with respect to
Xxxxxxx'x employment with the Company, the Employment Agreement or the cessation
of his employment which Xxxxxxx, his heirs, executors, administrators,
representatives and assigns ever had, now have or hereafter can, shall or may
have, for, upon, or by reason of any alleged or actual matter, cause or thing
from the beginning of time until the date Xxxxxxx signs this Agreement, except
that this paragraph shall not release any rights Xxxxxxx may have to
indemnification from third party claims pursuant to the Company's articles of
incorporation or bylaws. Notwithstanding the foregoing, this release shall
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not extend to claims Xxxxxxx may have, now or in the future, in his capacity as
a director or shareholder of the Company or claims for indemnification provided
to him as a director or during his tenure as an employee of the Company.
Without limiting the foregoing, this release includes any claims
under federal, state, city, county and local laws prohibiting discrimination on
the basis of age, sex, race, color, disability, religion, creed, national
origin, ancestry, sexual orientation, handicap, marital status, citizenship or
any other protected factor or characteristic, prohibiting discrimination for
requesting or taking a family or medical leave, prohibiting discrimination with
regard to benefits or any other terms and conditions of employment and
prohibiting retaliation in connection with any complaint or claim of alleged
discrimination or harassment. As such, this release includes, but is not limited
to, any claims arising under the Age Discrimination in Employment Act of 1967
("ADEA"), as amended, the Older Workers Benefit Protection Act, the Civil Rights
Act of 1991, the Americans with Disabilities Act ("ADA"), Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1866, as amended, the
Family Medical Leave Act of 1993 ("FMLA") the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), the Maryland Fair Employment
Practices Act, the Maryland Equal Pay for Equal Work Law, the New York State
Executive Law and the New York City Human Rights Law.
4. In further consideration of the foregoing, Xxxxxxx covenants and
agrees never to bring any action, complaint or suit in any court or commence an
arbitration proceeding against any of the Compass Released Parties arising out
of, in connection with or with respect to his employment, the Employment
Agreement or the cessation of his employment, provided that nothing in this
Agreement shall be construed to release the Company from its obligation to make
the payments provided for hereunder or to waive Xxxxxxx'x right to xxx for
indemnification or to enforce his rights under this Agreement or in his capacity
as a director or shareholder of the Company. In the event Xxxxxxx violates this
paragraph of the Agreement, he agrees to pay all costs and expenses of defending
against any such action, complaint, suit or arbitration proceeding incurred by
any of the Compass Released Parties, including reasonable attorneys' fees.
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5. Xxxxxxx hereby acknowledges that:
(a) the consideration provided for in this Agreement exceeds what he
would have received if he had not signed this Agreement;
(b) he has been advised by the Company that he should consult with
an attorney concerning the terms of this Agreement and its effect on him before
signing it;
(c) he has in fact read this Agreement, he has had an adequate
opportunity to fully consider the terms of this Agreement, he understands its
terms and consequences and he is executing it freely and voluntarily; and
(d) he was told by the Company that he had a period of 21 calendar
days from the date this Agreement was delivered to him in which to decide
whether to sign this Agreement.
6. For a period of seven (7) calendar days following Xxxxxxx'x
execution and delivery of this Agreement, he may revoke it by delivering written
notice revoking same within that time period to Xxxxxxx Xxxxxxxxxx, Chairman,
Compass International Services Corporation, Xxx Xxxx Xxxxx Xxxxx 0000, Xxx Xxxx,
Xxx Xxxx 00000. If the Agreement is not revoked during that seven (7) day
period, it shall become final. In the event the Agreement is revoked by Xxxxxxx
during the revocation period, the Agreement shall be null and void in all
respects.
7. Xxxxxxx acknowledges that during his employment he had access to
and possession of confidential business information about the Company and its
affiliates, its financial relationships, its business and financial results, and
its clients. He agrees that he will not, without the prior written consent of
the Company, disclose any such information, or express his personal opinions to
the extent they may have the effect of revealing or implying such information,
to any third party (except in his capacity as a board member of the Company in
discussions with other board members) unless such information has been
previously disclosed publicly by the Company, has become public through
appropriate means
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without improper disclosure by another source, or is required to be disclosed by
law.
8. Xxxxxxx agrees that during the Severance 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 other than the
Company, or in any other capacity except on behalf of the Company in his
capacity as board member of the Company:
(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
Xxxxxxx 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 Xxxxxxx 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 of the Employment
Period ("Termination Date") or that was known by Xxxxxxx to
have been actively being solicited by the Company to become
a customer of the Company at any time during such period;
(iii) solicit for employment or engagement, or influence or
induce to leave the Company's employment, or knowingly
cause to be employed or engaged, any person who is employed
or engaged by the Company in a managerial capacity on the
Termination Date or during the Severance Period unless such
person has been out of the employ of the Company for at
least 180 days;
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provided that Xxxxxxx shall be permitted to solicit and
hire any member of his immediate family;
(iv) enter into, or call upon or request non-public information
for the purpose of entering into, an Acquisition
Transaction with any entity with respect to which the
Company has made an offer or proposal for, or entered into
discussions or negotiations for, or evaluated with the
intent of making a proposal 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; or
(v) 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.
For purposes of this Section 8, "Business" is defined as accounts receivable
management services and telephonic check drafting services anywhere in the
United States.
9. During the Severance Period, Xxxxxxx agrees to provide reasonable
cooperation, consistent with the demands of any future employment, in all
respects with the Company (or any of the Compass Released Parties) in connection
with any and all existing or future investigations, proceedings, litigations or
examinations that relate to his service with the Company.
10. Xxxxxxx represents that he has returned to the Company all
Company property and equipment in his possession or control. This includes,
without limitation, computer equipment (hardware and software), company credit
cards, telephones, communication devices, office keys, security access cards,
badges, identification cards and all copies (including drafts) of any
documentation or information (however stored) relating to the business of the
Company, its clients or prospective clients and any of the Compass Released
Parties; provided however, that
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Xxxxxxx has retained information provided to him in his capacity as a board
member of the Company.
11. This Agreement amicably resolves any employment related issues
between Xxxxxxx and the Company and it is agreed that this Agreement shall not
be deemed an admission of any wrongdoing or liability of any kind on the part of
any person.
12. This Agreement and any claims arising hereunder shall be
governed by and construed in accordance with the laws of the State of New York
without regard to principles of conflicts of laws.
13. Any controversy or claim arising out of or relating to this
Agreement, the making, interpretation or breach thereof, other than a claim
solely for injunctive relief for any alleged breach of the provisions of
sections 1 or 8 (after providing notice and a thirty-day period to cure the
problem created by the act complained of) 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 Baltimore, Maryland, 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.
XXXXXXX 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. Each party to the arbitration
shall bear his or its own attorney's fees and expenses and, except as provided
above, the parties shall bear equally all other costs and expenses of the
arbitration.
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14. This Agreement contains the entire agreement between Xxxxxxx and
the Company and supersedes and cancels any prior agreement or understanding
between the parties on the subjects covered here. No agreements, representations
or statements of either party related to Xxxxxxx'x employment with the Company
and not contained in this Agreement shall bind that party. This Agreement can be
modified only in writing signed by both parties.
15. In the event that any provision or term of this Agreement is
held to be invalid, prohibited or unenforceable for any reason, the Company may
elect to enforce the remainder of the Agreement or cancel it and get back from
Xxxxxxx or heirs, executors or representatives, any consideration paid.
16. This Agreement shall be binding on and shall inure to the
benefit of Xxxxxxx'x heirs, executors, administrators, representatives and
assigns and the Company's successors in interest and assigns. Xxxxxxx represents
that he has not assigned or transferred or attempted to assign or transfer any
claim or rights that are the subject of this Agreement to any third party prior
to the time he signed this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement and
Release.
Compass International Services Corporation
By: /s/ Xxxxxxx Xxxxxxxxxx
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Title: Chairman
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Date:
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By: /s/ Leeds Xxxxxxx
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Leeds Xxxxxxx
Date:
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XXXXXXXXXXXXXX
XXXXX XX XXX XXXX)
: ss.:
COUNTY OF )
On this __ day of ___________, 1999, before me, a Notary Public in
and for the State of New York, personally appeared Leeds Xxxxxxx, to me known
and known to me to be the person named in and who signed the foregoing Agreement
and Release and who acknowledged it to be his own free act and deed.
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Notary Public
My Commission Expires:
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