EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of the _____ day of _____________ 1996,
between NCO FINANCIAL SYSTEMS, INC., a Pennsylvania corporation with its
principal offices at 0000 Xxxxxx Xxxx, Xxxx Xxxx, XX 00000 (the "Company") and
XXXXXX X. XXXXXXX, an individual, residing at 000 Xxxxxxxxx Xxxx, Xxxxxx, XX
00000, (the "Employee").
In consideration of their mutual promises and covenants set forth
herein, and intending to be legally bound hereby, the Company and the Employee
agree as follows:
1. Employment. The Company hereby employs the Employee and the Employee
accepts such employment on the terms and conditions hereinafter set forth.
2. Term. The term of this Agreement shall be for a period of five (5)
years commencing on the date hereof (the "Term").
3. Duties. The Employee is engaged hereunder to perform the duties of
Vice President, Finance and Chief Financial Officer of the Company with his
duties and services as may be reasonably required of him or assigned to him by
the Company's Chief Executive Officer or Board of Directors. Employee shall, at
all times be subject to the supervision of the President and Board of Directors
of the Company.
The Employee shall devote his full business time, attention, energies
and best efforts to the performance of his duties hereunder and to the promotion
of the business and interests of the Company and of any corporate subsidiaries
or affiliated companies.
4. Compensation; Expenses.
(a) Base Salary. The Employee shall be paid a salary at the
rate of not less than One Hundred Fifty Thousand Dollars ($150,000) per year
(the "Base Salary"). The Base Salary shall be paid in installments, in arrears,
in accordance with the Company's regular payroll practices but not less often
than monthly.
(b) Bonus. The Employee shall receive such bonus or bonuses as
the Board of Directors of the Company determine from time to time.
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(c) Benefits. The Employee shall be entitled to participate in
the Company's Stock Option Plan and all insurance, vacation and other benefit
programs of the Company to the extent and on the same terms and conditions as
are accorded to other executive employees of the Company. Furthermore, the
Employee shall receive a car leased by the Company, to the Employee's reasonable
satisfaction.
(d) Business Expenses. The Company will pay, or reimburse the
Employee for (i) all ordinary and reasonable out-of-pocket business expenses
incurred by the Employee in connection with his performance of services
hereunder, and (ii) all professional education classes and seminars and
professional license fees, during the initial term and any extension thereof.
The Employee shall follow the Company's expense authorization and approval
procedures then in effect, including presentation to the Company of an itemized
account and written proof of such expenses. All expenses related to the
operation of the Employee's car shall be covered by the Company.
(e) Entire Compensation. The compensation provided for
in this Agreement is in full payment of the services to be rendered
by the Employee to the Company hereunder.
5. Insurance. The Company may, in its sole discretion and at its own
expense, apply for and procure in its own name and for its own benefit or the
benefit of the Employee key man life insurance on the life of the Employee in
any amount or amounts considered advisable by the Company, and the Employee
shall submit to any medical or other examination and execute and deliver such
application or other instrument as may be reasonably necessary to effectuate
such insurance. The Company shall, subject to the Employee's prior written
approval, also have the right to assume any insurance policies of the Employee
in existence at the time employment hereunder commences. At such time as the
Employee's employment is terminated, the Employee shall have the right to
purchase from the Company any insurance policies at such policy's cash surrender
value, owned in whole or in part by the Company on the life or health of the
Employee.
6. Death or Total Disability of the Employee.
(a) Death. In the event of the death of the Employee
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during the Term of this Agreement or any extension thereof, compensation
payments shall continue in accordance with the provisions of paragraph 8 of this
Agreement.
(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
thirty (30) days' written notice thereof. The foregoing notwithstanding,
compensation payments hereunder shall continue in accordance with the provisions
of paragraph 8 of this Agreement, provided that if the Employee, during any
period of disability, including after termination of this Agreement, 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 Base Salary that the
Employee would be entitled to receive from the Company 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 six (6) consecutive months, during the Term of this Agreement, unable or
incompetent to carry out, on a substantially full-time basis, 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 by the Company, the cost of
which examination shall be paid by the Company.
7. Termination of Employment. In addition to termination pursuant to
paragraph 6 above, the Company, following prior written notice to the Employee,
may discharge the Employee and thereby terminate his employment hereunder for
the following reasons: (a) ("for cause") (i) habitual intoxication; (ii) refusal
to submit to treatment of an existing drug addiction; (iii) conviction of a
felony; (iv) willful misconduct by the Employee in connection with the
performance of his duties; (v) dishonesty, fraud or misappropriation of funds
of the Company; (vi) insubordination or refusal to comply with a lawful
directive of the Chief Executive Officer of the Company or his designee; or
(vii) the Employee's breach of this Agreement in any manner or respect which is
committed in bad faith and without reasonable belief that such action is in the
best interest of the Company.
8. Payment Upon Termination. If the Employee dies during the Term, or
if this Agreement is terminated by the Company for any reason other than the
causes set forth in paragraph 7 hereof, the Company shall continue to pay the
Employee's full compensation, including bonuses, for the balance of the Term.
Such compensation shall be paid to the Employee, or his widow, or, if she is not
then living, to the Employee's estate. If the Employee is terminated for any
reason set forth in Section 7 hereof or if the Employee voluntarily terminates
his employment, he shall receive no further compensation except such amounts as
shall have accrued as of the date of termination.
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
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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,
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. Noncompetition. The Employee agrees that during the term of this
Agreement and any extension thereof, and for a period of two (2) years after his
employment ceases, the Employee shall not, unless acting pursuant hereto or with
the prior written consent of the Board of Directors of the Company, directly or
indirectly:
(a) solicit business from or perform services for, any person,
company or other entity which at any time during the Employee's employment by
the Company is 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;
(b) solicit for employment or in any other fashion hire
any of the employees of the Company;
(c) 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 business of debt collection or any other business engaged in by the
Company or any of its affiliates in all those geographic areas in which the
Company or any of its affiliates does business;
(d) use or permit his name to be used in connection with any
business or enterprise engaged in the business of debt collection or any other
business engaged in by the Company or any of its affiliates in all those
geographic area in which the Company or any of its affiliates does business; or
(e) 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.
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In the event that any provisions of this paragraph 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. Furthermore, the above
restrictions shall be waived by the Company in the event that the Employee is
dismissed as a result of a merger or other business combination by the Company.
The foregoing restrictions are not intended in any way to restrict the
Employee's ability to resume his professional practice as a Certified Public
Accountant after his employment by the Company ceases, provided, however, that
he shall not provide services to any company in the debt collection business or
other business in which the Company was engaged at the time employment ceases.
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 those paragraph will result
in irreparable injury to the Company. The Employee also acknowledges that the
Company shall be entitled to temporary and permanent injunctive relief, after
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 an action for temporary and permanent injunctive relief and
other equitable relief in any court of competent jurisdictions and Employee
further irrevocably submits to the jurisdiction of any Pennsylvania court of
Federal court sitting in the Eastern District of Pennsylvania over any suit,
action or proceeding arising out of or relating to paragraphs 9 or 10. The
Employee hereby waives, to the fullest extent permitted by law, any objection
that he may now or hereafter have to such jurisdiction or to the venue of any
such suit, action or proceeding brought in such a court and any claim that such
suit, action or proceeding has been brought in any inconvenient forum. Effective
service of process may be made upon
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the Employee by mail under the notice provisions contained in
paragraph 14 hereof.
(b) Survival of Covenants. The provisions of paragraphs
8, 9 and 10 shall survive the termination of this Agreement.
12. 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 may be deemed expedient or necessary by the
Company in its sole discretion.
13. 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.
14. 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: 0000 Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
with copy to: Xxxxxx Xxxxxx, Esquire
000 X. Xxxxx Xx., 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
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If to the Employee: 000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
with copy to: Xxxxx Xxxx, Esquire
Ford Xxxxxxxx & Roeberg
000 Xxxxxxxx Xxxx, Xxx 000
Xxxx Xxxx, XX 00000
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 the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other parties hereto
notice in the manner herein set forth.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the
Commonwealth of Pennsylvania.
16. Indemnification: The Company shall indemnify the Employee and hold
him harmless for all acts or decisions made by him in good faith while
performing services for the Company. the Company shall pay all expenses
including attorney's fees, actually and necessarily incurred by the Employee in
connection with the defense of any act, suit or proceeding and in connection
with any related appeal including the cost of court settlements.
17. Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the rules of the American Arbitration
Association. Venue shall be in Xxxxxxxxxx County, Pennsylvania. Judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Each party shall bear its costs of arbitration, including
attorney's fees, expert fees and costs.
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18. Contents of Agreement; 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.
IN WITNESS WHEREOF, this Agreement has been executed by the parties on
the date first above written.
Attest: NCO Financial Systems, Inc.
______________________[SEAL] BY:__________________________
Xxxxxxx Xxxxxxx, President
Witness: The Employee:
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Xxxxxx X. Xxxxxxx
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