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Exhibit 10.41
PRECISION RESPONSE CORPORATION
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
(000) 000-0000
Fax (000) 000-0000
October 1, 1998
Xx. Xxxxxxx X. Xxxxx, Xx.
Precision Response Corporation
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Dear Xxxxxx:
This letter agreement (this "Agreement") sets forth the understanding
of the conversations we have had regarding your employment relationship with
Precision Response Corporation, a Florida corporation ("Employer"), and
supersedes and replaces in its entirety that certain Employment Agreement dated
as of February 19, 1997, as amended by that certain Amendment to Employment
Agreement dated as of October 1, 1997, between Employer and you (as amended, the
"Former Agreement").
As of this time, although we are terminating the Former Agreement,
Employer wishes you to stay in the continued employment of Employer with reduced
responsibilities and we understand that you ("Employee") wish to remain in the
employ of Employer. Your continued employment will be subject to the terms and
conditions set forth herein.
The terms and conditions of our continued relationship shall be as
follows:
1. TERM. Subject to Section 5.A, Employee's term of employment shall
continue until 5:00, p.m., March 31, 2000 (the "Employment Term").
2. DUTIES. Employee's duties and responsibilities hereunder shall be
those reasonably assigned to Employee from time to time by the Employer's
Chairman of the Board or Chief Executive Officer. Employer shall, unless and
until otherwise determined by Employer, serve as a senior advisor to Employer
and shall attend to matters as determined by Employer, which may include, but
not be limited to, advising the executives of Employer on general sales, client
matters and other business related matters, participating in client relations
and engaging in, and supporting and advising the Employer's sales group on, the
generation of new client prospects and new clients. Employee shall report
directly to Employer's Chief Executive Officer or as otherwise directed from
time to time by Employer's Chairman of the Board or Chief Executive Officer.
Notwithstanding the
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foregoing, Employee shall be free to engage in other remunerative activities
during the Employment Term so long as such activities do not interfere with
Employee's duties to Employer hereunder.
3. COMPENSATION.
A. SALARY. Subject to the provisions of this Agreement,
Employer shall pay salary ("Salary") to Employee in an aggregate amount of
$75,000 per annum during the Employment Term, which Salary shall be earned
ratably over the Employment Term. Salary shall be payable in accordance with
Employer's normal payroll practices for its employees and shall be subject to
payroll deductions and tax withholdings in accordance with Employer's usual
practices and as required by law.
B. COMMISSION. If solely and directly as a result of
Employee's introduction to decision-makers at a company and material
facilitation efforts thereafter (and not (i) as a result of a lead from, or at
the direction of, Employer or any of its other employees, or (ii) from Employee
assisting or advising any other employees of the Employer), Employer enters into
an agreement with such company on or after the date hereof (an "Applicable
Customer") to perform services ("Employer Services"), Employee shall be entitled
to the commission (the "Commission Amount") described below so long as Employee
remains employed by Employer hereunder, provided, however, that, notwithstanding
anything to the contrary herein, in no event shall any Commission Amount be
payable to Employee with respect to any Applicable Customer for a period in
excess of one year, and, accordingly, all calculations of the Commission Amount
under this Section 3.B. shall exclude Adjusted Gross Sales (as hereinafter
defined) from any Applicable Customer after a period of one year. The Commission
Amount payable to Employee shall equal one and one-half percent (1 1/2%) of
Adjusted Gross Sales derived by Employer from performance of Employer Services,
in all cases, which are actually collected by Employer each month from
Applicable Customers. Adjusted Gross Sales means, with respect to each month,
the total revenues collected that month from Applicable Customers, less only (a)
credits and refunds given to Applicable Customers such month, (b) amounts
collected by Employer from Applicable Customers to pay sales, use or similar
taxes, (c) amounts collected by Employer from Applicable Customers for postage,
freight and delivery charges, (d) any amounts or costs collected which are
associated with telecommunications charges and (e) amounts collected by Employer
from Applicable Customers to pay for equipment or other items purchased by
Employer to provide Employer services to such Applicable Customers, excluding
any xxxx-up above Employer's cost thereof charged such Applicable Customers
which xxxx-up shall be included in total revenues for purposes of calculating
Adjusted Gross Sales. The Commission Amount shall be payable monthly on or
before the end of the month following the month in which the Adjusted Gross
Sales as to which it relates has been collected. Notwithstanding anything to the
contrary hereunder, should Employee's employment hereunder terminate, Employer's
obligation to pay the Commission Amount shall automatically terminate and, as of
such time, Employee shall be entitled
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to no further Commission Amount except for the Commission Amount earned on
Adjusted Gross Sales collected by Employer prior to the end of the calendar
month in which Employee's employment hereunder has terminated; provided,
however, that, if Employee's employment hereunder is terminated by Employer
without cause, Employee shall be entitled to the Commission Amount earned on
Adjusted Gross Sales collected by Employer for a period ending on the earlier to
occur of (i) March 31, 2000 and (ii) the last day of the calendar month which
falls one (1) year after the end of the calendar month in which Employee's
employment hereunder has been terminated by Employer without cause, unless
Employee and Employer shall mutually agree upon a lump sum amount to be paid to
Employee at the time of any such termination in lieu of payment of any future
Commission Amount. The Commission Amount shall be subject to payroll deductions
and tax withholdings in accordance with Employer's usual payroll practices and
as required by law.
C. CANCELLATION PAYMENT. In consideration of Employee agreeing
to the cancellation of the Former Agreement, Employee shall receive a
cancellation payment (the "Cancellation Payment") in the aggregate amount of
$400,000, subject to adjustment by subtracting from such Cancellation Payment
the amount of any salary paid to Employee from October 1, 1998 through April 30,
1999 at a rate in excess of $75,000 per annum. The Cancellation Payment shall be
payable (subject to the aforesaid reduction for any excess salary payment) on or
prior to April 30, 1999. The Cancellation Payment shall be subject to payroll
deductions and tax withholdings in accordance with Employer's usual payroll
practices and as required by law.
D. STOCK OPTIONS. Each stock option agreement between Employee
and Employer, as and to the extent as previously amended, shall remain in full
force and effect in accordance with its terms and unchanged by this Agreement.
4. FRINGE BENEFITS AND EXPENSES.
A. EMPLOYEE BENEFITS. Employee shall be entitled to such
benefits and fringe benefits (such as individual and family health, dental, life
and disability insurance) as are made available by Employer from time to time,
in Employer's sole discretion, to all other similarly-situated employees
generally; provided, however, that Employee shall not be entitled to any
vacation.
B. EXPENSES. Employer shall reimburse Employee for Employee's
reasonable out-of-pocket costs and expenses incurred in connection with the
performance of Employee's duties and responsibilities hereunder, subject to
Employee's presentation of appropriate documentation and, if requested,
justification therefor, and provided that the types and amounts of expenses
incurred are consistent with, in Employer's judgment, Employer's policies and
practices.
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5. TERMINATION.
A. TERMINATION EVENTS. Employee's employment under this
Agreement may be terminated by Employer only as follows: with or without Cause
(as hereinafter defined), effective upon the delivery of written notice to
Employee; upon Employee's death; or upon Employee becoming Disabled (as
hereinafter defined) and receiving written notice of termination from Employer
to that effect. Employee may terminate Employee's employment under this
Agreement without being in breach hereunder by giving written notification of
Employee's resignation to Employer which shall specify a resignation date no
earlier than ninety (90) days following the date of delivery of such notice of
resignation.
B. DEFINITIONS OF CAUSE AND DISABLED. For purposes of this
Agreement, "Cause" shall mean and include: (i) commission of a felony, or
commission of acts of fraud, dishonesty, or the like; (ii) habitual drunkenness
during business hours or at Employer's premises; (iii) illicit use of drugs
during business hours or at Employer's premises; (iv) abandonment of employment
duties; (v) negligence in the performance of employment duties; (vi) an act or
omission on the part of Employee not directed by Employer which results in or
contributes to Employer being sanctioned or penalized by any governmental or
quasi-governmental authority or body, or any stock exchange or body regulating
or governing publicly-traded companies (including the NASD); (vii)
insubordination; or (viii) breach by Employee of this Agreement which, if
curable, is not cured by Employee within ten (10) days following Employee's
receipt of written notice thereof. Employee shall be deemed "Disabled" for
purposes of this Agreement (a) if, in the reasonable judgment of Employer,
Employee is unable, due to physical, mental or emotional illness or injury, to
perform substantially all of Employee's duties and responsibilities for Employer
for a continuous period of ninety (90) days, or (b) if Employee is adjudicated
as an incompetent or has a guardian appointed to handle Employee's affairs.
C. EFFECT OF TERMINATION FOR CAUSE OR EMPLOYEE'S RESIGNATION.
In the event that Employee's employment under this Agreement is terminated by
Employer with Cause, or because Employee resigns from or quits Employee's
employment, Employer shall pay to Employee, within thirty (30) days following
the date of such termination or resignation, the Salary, if any, accrued and
unpaid through the date of termination; and, except for the payment of any
unpaid portion of (i) the Cancellation Payment as and when due as set forth in
Section 3.C. or (ii) the accrued and unpaid Commission Amount to the extent set
forth in Section 3.B., Employee shall not be entitled to any other compensation,
remuneration or other sums provided for in this Agreement or to which Employee
might otherwise be entitled hereunder or at law or in equity.
D. COMPENSATION UPON DEATH OR DISABILITY. Upon the death of
Employee, or termination of employment because Employee is Disabled, Employer
shall pay to Employee,
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Employee's legal guardian or the legal representative of Employee's estate (or
heir as designated by the legal representative of Employee's estate at such
time), within thirty (30) days following the date of Employee's death or
termination, the Salary, if any, accrued and unpaid through the date of
termination; and, except for the payment of any unpaid portion of (i) the
Cancellation Payment as and when due as set forth in Section 3.C. or (ii) the
accrued and unpaid Commission Amount to the extent set forth in Section 3.B.,
Employee (or such legal guardian, legal representative or any heirs) shall not
be entitled to any other compensation, remuneration or other sums provided for
in this Agreement or to which Employee might otherwise be entitled hereunder or
at law or in equity.
E. COMPENSATION UPON TERMINATION WITHOUT CAUSE. In the event
that Employer terminates Employee's employment under this Agreement without
Cause, Employee's sole and exclusive compensation and remedy hereunder shall be
to receive from Employer, and Employer shall pay and/or provide: (i) the amount
of Salary, if any, accrued and unpaid through the date of termination; (ii) the
amount of any unpaid portion of the Cancellation Payment as and when due as set
forth in Section 3.C.; and (iii) the Commission Amount to the extent set forth
in Section 3.B.
6. CONFIDENTIALITY.
A. CONFIDENTIAL INFORMATION. Employee acknowledges that
Employee had been informed by Employer at the time of his original employment of
Employer's policy to maintain as secret and confidential all information and
materials relating to (i) the financial condition, operations, business and
interests of Employer, (ii) the systems, technology, know-how, records,
products, services, cost or pricing information, inventions, computer software
programs, marketing and sales techniques and/or programs, methods,
methodologies, manuals, lists and other trade secrets from time to time
acquired, sold, developed, maintained and/or used by Employer, and (iii) the
nature and terms of Employer's relationships with its clients, suppliers,
lenders, underwriters, vendors, consultants, independent contractors, attorneys,
accountants and employees (all such information and materials being hereinafter
collectively referred to as "Confidential Information"). Employee further
acknowledges that such Confidential Information is of great value to Employer
and has been developed by Employer as a result of substantial effort and
expense. Therefore, Employee understands that it is reasonably necessary to
protect Employer's good will, trade secrets and legitimate business interests
that Employee agree and, accordingly, Employee does hereby agree, that Employee
will not directly or indirectly (except where authorized by the Board of
Directors, Chairman of the Board or Chief Executive Officer of Employer for the
benefit of Employer) at any time hereafter divulge or disclose for any purpose
to any persons, firms, corporations or other entities (hereinafter referred to
collectively as "Third Parties"), or use or cause or authorize any Third Parties
to use, any such Confidential Information, except as otherwise required by law.
Any software, technology, know-how, trade secrets or intellectual property
rights of any kind developed by Employee during the period of his employment
with Employer which in any way relate or have
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application or value to Employer's business shall be the property, as between
Employee and Employer, solely of Employer.
B. EMPLOYER'S MATERIALS. In accordance with the foregoing,
Employee furthermore agrees that (i) Employee will at no time retain or remove
from the premises of Employer any products, prototypes, drawings, notebooks,
software programs or discs, tapes or similar containers of software, manuals,
data, books, records, materials or documents of any kind or description for any
purpose unconnected with the strict performance of Employee's duties with
Employer and (ii) upon the cessation or termination of Employee's employment
with Employer for any reason, Employee shall forthwith deliver or cause to be
delivered to Employer any and all drawings, notebooks, software programs or
discs, tapes or similar containers of software, manuals, data, books, records,
materials and other documents and materials in Employee's possession or under
Employee's control relating to any Confidential Information or any other
material or thing which is the property of Employer.
7. COVENANT-NOT-TO-COMPETE. In view of (A) the Confidential Information
known to and to be obtained by or disclosed to or previously disclosed to
Employee, (B) the substantial consideration (including, without limitation, the
Cancellation Payment) paid and payable to Employee under this Agreement, (C) as
a material inducement to Employer to enter into this Agreement, and (D) for
other good and valuable considerations (including, without limitation, the
termination of Employee's obligations and agreements under Section 11 of the
Former Agreement), Employee covenants and agrees that, for as long as Employee
is employed by Employer and for a period of two (2) years after the date
Employee ceases for any reason to be employed by Employer, Employee shall not,
directly or indirectly, (A) solicit the services of, or hire, directly or
indirectly, whether on Employee's own behalf or on behalf of others, any
managerial or executive employee, account manager, member of Employers' sales,
marketing, customer service or client relations group or programmer or other
information services or data base management personnel of Employer who is
employed by Employer or any of its affiliates as of or following the date of
termination of Employee's employment, or (B) engage in any venture, enterprise,
activity or business, passively or actively, as an owner, or as a consultant,
adviser, independent contractor, participant, employee or agent in a capacity
relating to marketing, advertising, promotional activities, client relations,
customer service or sales, competitive with the business of Employer anywhere
within the continental United States other than and excluding any business
performing the services provided by Employer solely for its own internal use.
Employee acknowledges that the business of Employer is national in scope, that
one can effectively compete with such business from anywhere in the continental
United States, and that, therefore, such geographical area of restriction is
reasonable in the circumstances to protect Employer's trade secrets, goodwill
and other legitimate business interests.
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8. ENFORCEMENT. Employee covenants and agrees that if Employee shall
violate or breach any of Employee's covenants or agreements provided for in
Section 6 or 7, Employer shall be entitled to an accounting and repayment of all
profits, compensation, commissions, remunerations and benefits which Employee
directly or indirectly has realized and realizes as a result of, growing out of
or in connection with any such violation or breach. In addition, in the event of
a breach or violation or threatened or imminent breach or violation of any
provisions of Section 6 or 7, Employer shall be entitled to a temporary and
permanent injunction or any other appropriate decree of specific performance or
equitable relief (without being required to post bond or other security, to the
extent permitted by applicable law) from a court of competent jurisdiction in
order to prevent, prohibit or restrain any such breach or violation or
threatened or imminent breach or violation by Employee and/or by any Third
Parties. Employer shall be entitled to such injunctive or other equitable relief
in addition to any ascertainable damages which are suffered, together with
reasonable attorneys' and paralegals' fees and costs and other costs incurred in
connection with any such litigation, both before and at trial and at all
tribunal levels. It is understood that resort by Employer to such injunctive or
other equitable relief shall not be deemed to waive or to limit in any respect
any other rights or remedies which Employer may have with respect to such breach
or violation.
9. RESIGNATION. Employee hereby resigns, effective as of the date of
this Agreement, as an executive officer of Employer.
10. MISCELLANEOUS.
A. This Agreement shall be governed by and construed pursuant
to the laws of the State of Florida.
B. Any notices required or permitted to be given pursuant to
this Agreement shall be sufficient if in writing, and delivered personally, by
commercial courier service or sent by certified mail, return receipt requested,
and sent to Employer's executive offices, to the attention of the Chief
Executive Officer, if mailed to Employer, and to Employee's then current
residence, if mailed to Employee.
C. This Agreement constitutes the entire final agreement
between the parties with respect to, and supersedes any and all prior and
contemporaneous agreements (including, but not limited to, the Former Agreement)
between the parties hereto, both oral and written, concerning the subject matter
hereof and may not be amended, modified or terminated except by a writing signed
by the parties hereto. The parties mutually acknowledge and agree that the
Former Agreement is hereby terminated and of no further force or effect
whatsoever.
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D. If any provision of this Agreement shall be held to be
invalid or unenforceable, and is not reformed by a court of competent
jurisdiction, such invalidity or unenforceability shall attach only to such
provision and shall not in any way affect or render invalid or unenforceable any
other provision of this Agreement, and this Agreement shall be carried out as if
such invalid or unenforceable provision were not herein contained.
E. A waiver of any breach or violation of any term, provision
or covenant herein contained shall not be deemed a continuing waiver or a waiver
of any future or past breach or violation. No oral waiver shall be binding.
F. This Agreement may be executed in counterparts, each of
which shall be an original, but both of which together shall constitute one and
the same instrument.
G. Employer strongly recommends to Employee that Employee
retain independent legal counsel to advise Employee with respect to this
Agreement before Employee signs it.
If you agree that this Agreement correctly sets forth the current
understanding and agreement of employment between Employee and Employer, please
sign by your name below and return this letter to me.
PRECISION RESPONSE CORPORATION, a Florida
corporation
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxx, Chief Executive Officer
AGREED TO AND ACCEPTED BY:
/s/ Xxxxxxx X. Xxxxx, Xx.
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XXXXXXX X. XXXXX, XX.
