EXHIBIT 10.35
EMPLOYMENT AGREEMENT
This Agreement is made as of the 27th day of November, 1996 between
Outsourcing Solutions Inc., a Delaware corporation, with offices at 300 Galleria
Parkway, Atlanta, Georgia 30339 (the "Company"), and James F. Whalen, an
individual residing in the State of Texas (the "Employee").
R E C I T A L S
WHEREAS, the Company desires to secure the services and employment of
the Employee on behalf of the Company, and the Employee desires to enter into
employment with the Company, upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. EMPLOYMENT. The Company hereby employs the Employee as Chief
Financial Officer of the Company, and the Employee accepts such employment for
the term of the employment specified in Section 3 below. During the Employment
Term (as defined below), the Employee shall serve as the Chief Financial Officer
of the Company, performing such duties as shall be reasonably required of such
an employee of the Company, and shall have such other powers and perform such
other additional executive duties as may from time to time be assigned to him by
the Board of Directors of the Company. The Employee's primary place of
employment shall be St. Louis, Missouri.
2. PERFORMANCE. The Employee will serve the Company faithfully and
to the best of his ability and will devote substantially all of his time,
energy, experience and talents during regular business hours and as otherwise
reasonably necessary to such employment, to the exclusion of all other business
activities.
3. EMPLOYMENT TERM. The employment term shall begin on the date of
this Agreement and continue until the first anniversary date of this Agreement,
unless earlier terminated pursuant to Section 7 below (the "Employment Term").
The Employment Term may be extended by mutual agreement of the Company and the
Employee in accordance with Section 7 below.
4. COMPENSATION.
(a) SALARY. During the Employment Term, the Company shall pay the
Employee a base salary, payable in equal semimonthly installments, subject to
withholding and other applicable taxes, at an annual rate of Two Hundred
Thousand Dollars ($200,000.00).
(b) BONUS. For the period commencing on the date of this Agreement
and ending on December 31, 1996, the Company shall pay the Employee a guaranteed
bonus, subject to withholding and other applicable taxes, of $100,000, payable
on December 31, 1996. Commencing on January 1, 1997, the Employee shall be
eligible for an annual bonus of up to 50% of his base salary. Such annual bonus
shall be based on the satisfaction of performance targets established by the
Board of Directors on or before December 31 of each year for the next succeeding
year.
(c) STOCK OPTIONS. The Company shall grant to the Employee options
to purchase 45,000 shares of the Company's common stock at an exercise price of
$21.00 per share pursuant to the Company's 1995 Stock Option and Stock Award
Plan (the "Plan"). Such options shall vest upon the satisfaction of performance
and liquidity targets as set forth in the Plan and any award agreement pursuant
to which such options are granted.
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(d) MEDICAL AND DENTAL HEALTH BENEFITS. During the Employment Term,
the Employee shall be entitled to medical and dental heath benefits in
accordance with the Company's established practices with respect to its key
employees.
(e) VACATION; SICK LEAVE. During the Employment Term, the Employee
shall be entitled to vacation and sick leave in accordance with the Company's
established practices with respect to its key employees.
5. EXPENSES. The Employee shall be reimbursed by the Company for
all reasonable expenses incurred by him in connection with the performance of
his duties hereunder in accordance with policies established by the Board from
time to time and upon receipt of appropriate documentation. The Company shall
reimburse the Employee for reasonable expenses incurred in connection with the
Employee's relocation from Austin, Texas to the St. Louis area, such
reimbursement not to exceed $20,000.
6. SECRET PROCESSES AND CONFIDENTIAL INFORMATION. For the
Employment Term and thereafter, (a) the Employee will not divulge, transmit or
otherwise disclose (except as legally compelled by court order, and then only to
the extent required, after prompt notice to the Company of any such order),
directly or indirectly, other than in the regular and proper course of business
of the Company, any confidential knowledge or information with respect to the
operations or finances of the Company or with respect to confidential or secret
processes, services, techniques, customers or plans with respect to the Company
and (b) the Employee will not use, directly or indirectly, any confidential
information for the benefit of anyone other than the Company; provided, however,
that the Employee has no obligation, express or implied, to refrain from using
or disclosing to others any such knowledge or information which is or hereafter
shall become available to the public other than through disclosure by the
Employee. All new processes,
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techniques, know-how, inventions, plans, products, patents and devices
developed, made or invented by the Employee, alone or with others, while an
employee of the Company, shall be and become the sole property of the Company,
unless released in writing by the Company, and the Employee hereby assigns any
and all rights therein or thereto to the Company.
During the term of this Agreement and thereafter, Employee shall not
take any action to disparage or criticize to any third parties any of the
services of the Company or to commit any other action that injures or hinders
the business relationships of the Company.
During the term of this Agreement and thereafter, Employee shall not
employ, solicit for employment or otherwise contract for the services of any
employee of the Company or any of its Affiliates (as defined below) at the time
of this Agreement or who shall subsequently become an employee of the Company or
any of its Affiliates.
All files, records, documents, memorandums, notes or other documents
relating to the business of Company, whether prepared by Employee or otherwise
coming into his possession in the course of the performance of his services
under this Agreement, shall be the exclusive property of Company and shall be
delivered to Company and not retained by Employee upon termination of this
Agreement for any reason whatsoever.
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7. TERMINATION. The employment of the Employee hereunder shall
automatically terminate at the end of the Employment Term, unless the parties
hereto mutually agree otherwise in writing, at least 30 days prior to expiration
of the Employment Term. The employment of the Employee hereunder may also be
terminated at any time by the Company with or without "cause". For purposes of
this Agreement, "cause" shall mean: (i) embezzlement, theft or other
misappropriation of any property of the Company or any subsidiary, (ii) gross or
willful misconduct resulting in substantial loss to the Company or any
subsidiary or substantial damage to the reputation of the Company or any
subsidiary, (iii) any act involving moral turpitude which results in a
conviction for a felony involving moral turpitude, fraud or misrepresentation,
(iv) gross neglect of his assigned duties to the Company or any subsidiary, (v)
gross breach of his fiduciary obligations to the Company or any subsidiary, or
(vi) any chemical dependence which materially affects the performance of his
duties and responsibilities to the Company or any subsidiary; provided that in
the case of the misconduct set forth in clauses (iv) and (vi) above, such
misconduct shall continue for a period of 30 days following written notice
thereof by the Company to the Employee.
8. SEVERANCE. If the Employee's employment is terminated by the
Company without "cause", the Employee shall be entitled to receive an amount
equal to his base salary for the year preceding the Employee's termination,
payable, at the Company's option, in a lump sum on the date of termination or
ratably over the one year period following the date of termination. If the
Employee's employment is terminated by the Company "for cause", the Employee
shall not be entitled to severance compensation. The Employee covenants and
agrees that he will not, during the one year period following the termination of
the Employee's employment by the Company, within any jurisdiction or marketing
area in which the Company or any of its Affiliates (as defined below) is doing
business or is qualified to do
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business, directly or indirectly own, manage, operate, control, be employed by
or participate in the ownership, management, operation or control of, or be
connected in any manner with, any business of the type and character engaged in
and competitive with that conducted by the Company or any of its Affiliates at
the time of such termination; PROVIDED, HOWEVER, that ownership of securities of
2% or less of any class of securities of a public company shall not be
considered to be competition with the Company or any of its Affiliates. For the
purposes of this Section 8, the term "Affiliate" shall mean, with respect to the
Company, any person or entity which, directly or indirectly, owns or is owned
by, or is under common ownership with, the Company. The term "own" (including,
with correlative meanings, "owned by" and "under common ownership with") shall
mean the ownership of 50% or more of the voting securities (or their equivalent)
of a particular entity.
9. NOTICE. Any notices required or permitted hereunder shall be in
writing and shall be deemed to have been given when personally delivered or when
mailed, certified or registered mail, postage prepaid, to the following
addresses:
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If to the Employee:
James F. Whalen
3201 Century Park Blvd.
#516
Austin, Texas 78727
If to the Company:
Outsourcing Solutions Inc.
300 Galleria Parkway, Suite 690
Atlanta, Georgia 30339
With a copy to:
McCown De Leeuw & Co.
101 East 52nd Street
31st Floor
New York, New York 10022
Attention: David E. King
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10. GENERAL.
(a) GOVERNING LAW; JURISDICTION. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of New York applicable to contracts executed and to be performed
entirely within said State. Any judicial proceeding brought against any of the
parties to this Agreement or any dispute arising out of this Agreement or any
matter related hereto may be brought in the courts of the State of New York or
in the United States District Court for the Southern District of New York, and,
by execution and delivery of this Agreement, each of the parties to this
Agreement accepts the jurisdiction of said courts, and irrevocably agrees to be
bound by any judgment rendered thereby in connection with this Agreement. The
foregoing consent to jurisdiction shall not be deemed to confer rights on any
person other than the respective parties to this Agreement.
(b) ASSIGNABILITY. The Employee may not assign his interest in or
delegate his duties under this Agreement. Notwithstanding anything else in this
Agreement to the contrary, the Company may assign this Agreement to and all
rights hereunder shall inure to the benefit of any person, firm or corporation
succeeding to all or substantially all of the business or assets of the Company
by purchase, merger or consolidation.
(c) ENFORCEMENT COSTS. In the event that either the Company or the
Employee initiates an action or claim to enforce any provision or term of this
Agreement, the costs and expenses (including attorney's fees) of the prevailing
party shall be paid by the other party, such party to be deemed to have
prevailed if such action or claim is concluded pursuant to a court order or
final judgment which is not subject to appeal, a settlement agreement or
dismissal of the principle claims.
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(d) BINDING EFFECT. This Agreement is for the employment of
Employee, personally, and for the services to be rendered by him must be
rendered by him and no other person. This Agreement shall be binding upon and
inure to the benefit of the Company and its successors and assigns.
(e) ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and may not be modified or amended in any way except in writing by the parties
hereto.
(f) DURATION. Notwithstanding the term of employment hereunder, this
Agreement shall continue for so long as any obligations remain under this
Agreement.
(g) SURVIVAL. The covenants set forth in Sections 6 and 7 of this
Agreement shall survive and shall continue to be binding upon Employee
notwithstanding the termination of this Agreement for any reason whatsoever.
The covenants set forth in Sections 6 and 8 of this Agreement shall be deemed
and construed as separate agreements independent of any other provision of this
Agreement. The existence of any claim or cause of action by Employee against
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by Company of any or all covenants. It is
expressly agreed that the remedy at law for the breach or any such covenant is
inadequate and that injunctive relief shall be available to prevent the breach
or any threatened breach thereof.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto executed this Agreement the day and year first written above.
OUTSOURCING SOLUTIONS INC.
By: /s/ Timothy G. Beffa
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Name: Timothy G. Beffa
Title: Chief Executive Officer
EMPLOYEE
/s/ James F. Whalen
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James F. Whalen
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