EMPLOYMENT AGREEMENT
THIS AGREEMENT, made this 31st day of March 1999, by and
between NCO Group, Inc., a Pennsylvania corporation, (hereinafter called
"Company"), and Xxxxx X. D'Xxxx, an individual (hereinafter called "Employee").
W I T N E S S E T H:
WHEREAS, Employee's present employer, JDR Holdings, Inc.
("JDR"), is being acquired by and merged with a wholly owned subsidiary of
Company (the "Merger");
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 aforementioned
acquisition and merger, 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 Company.
"Business" shall mean the business conducted by
Company or JDR in the past and on the date of execution of this Agreement,
including without limitation any business in the debt collection, telemarketing,
outsourcing and teleservices industries, 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) if Employee commits a material
breach of this Agreement.
"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 150 consecutive days, or more than 240 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 one (1) year after Employee's employment with Company is
either terminated by Employee or by Company for Cause, or for the remaining term
of this Agreement if Employee's employment with Company is terminated by Company
without Cause;
(b) For purposes of Section 14(a)(B), from
the date hereof until five (5) years after Employee's employment is either
terminated by Employee or by Company for Cause, or for five (5) years after the
remaining term of this Agreement if Employee's employment with Company is
terminated by Company without Cause;
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"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 Company and Divisional Chief Executive Officer of Company's
Technology Based Outsourcing Division (the "Division"). In such capacity,
Employee shall render such services as are necessary and desirable to protect
and advance the best interests of 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
debt 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 its direct and indirect wholly owned Subsidiaries thereof
(collectively, with Company, the "NCO Group") as the Boards of Directors of the
members of the NCO Group may from time to time reasonably request of Employee.
Employee may, in addition, hold such offices with the NCO Group 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 of Company
and the Boards of Directors of Company and the other members of the NCO Group
and to the Boards' discretion to determine the policies of the NCO Group.
(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.
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(c) Employee's services will be conducted at
Company's headquarters in Ramsey, New Jersey 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
Merger (the "Commencement Date"), and ending on March 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 eighty (180) 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
Three Hundred Sixty-Seven Thousand Five Hundred Dollars ($367,500.00) payable in
installments in accordance with Company's regular payroll practices in effect
from time to time. The amount of Base Compensation payable hereunder shall be
adjusted no later than June 30 of each year during the Term of Employment,
effective as of June 1 of each year, by an increase of at least five (5)
percent, and may be further increased by such other amounts as may be determined
in the discretion of the Board.
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(b) In addition to the foregoing compensation, if the
outsourcing business of the Division records an increase in gross revenues in
any year over the immediately prior year's gross revenues, then Employee shall
be entitled to receive an annual bonus (the "Annual Bonus") in the amount of One
Hundred Fifty Thousand Dollars ($150,000.00). If such increase in gross revenues
exceeds the immediately prior year's gross revenues by more than 20%, then the
Annual Bonus shall be increased by an amount equal to the product obtained by
multiplying Fifteen Thousand Dollars ($15,000.00) by the lesser of (x) 10 or (y)
the amount by which such percentage increase in gross revenues exceeds 20%. For
example, if the Division's outsourcing business annual gross revenues for 1998
were $1,000,000, and the applicable annual gross revenues for 1999 are
$1,250,000 (i.e., an increase in annual gross revenue of 25%), then the Annual
Bonus of $150,000 would be increased by $75,000 to a total of $225,000. It
should be noted that in no event would the total Annual Bonus as calculated
above exceed Three Hundred Thousand Dollars ($300,000.00). If the increase in
applicable gross revenues exceeds 30%, any further additional bonus shall be at
the discretion of Company. For purposes of determining gross revenues, such
revenues must be of a quality consistent with the Division's past practice and
the applicable business plan. In addition, the Annual Bonus formula set forth
above shall be subject to adjustment for any extraordinary events, including,
without limitation, shifts in business between divisions, as well as
acquisitions and divestitures within the Division. For the year ending December
31, 1999, a 20% increase in the immediately prior year's gross revenues would be
attained if the applicable gross revenues for the year ended December 31, 1999
equal $44,877,600.
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 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 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.
(d) Company shall provide Employee one Company leased
automobile which shall of comparable value to that presently provided to
Employee, shall provide automobile insurance on that Company leased automobile,
shall provide a cellular telephone and shall maintain Employee's reserved
parking space at the Ramsey, New Jersey office.
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 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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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 30 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 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 non-competitive 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 from holding for investment no more than five percent (5%) 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.
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(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, 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 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.
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(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 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.
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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.
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 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.
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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 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. Xxxxx X. D'Xxxx
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
with a copy, given in the manner prescribed above, to:
Xxxxxxx Xxxxxxxx XX
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
If to Company:
Xxxxxxx Xxxxxxx
Chief Executive Officer
NCO Group, Inc.
000 Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
with a copy, given in the manner prescribed above, to:
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Xxxxxx Xxxxxx
Executive Vice-President and General Counsel
NCO Group, Inc.
000 Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
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.
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(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 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.
IN WITNESS WHEREOF, the parties have duly executed and
delivered this Agreement as of the date first above written.
NCO GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: CEO
/s/ Xxxxx X. D'Xxxx
-----------------------------------------(SEAL)
Xxxxx X. D'Xxxx
-13-
