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Exhibit 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, executed as of August 4, 1998 to be effective as
of January 1, 1998, by and between PRECISION RESPONSE CORPORATION, a corporation
organized and existing under the laws of the State of Florida (hereinafter
referred to as "Employer"), and XXXXXX XXXXXX (hereinafter referred to as
"Employee").
W I T N E S S E T H:
WHEREAS, Employer is a Florida corporation engaged in the
teleservicing, database management and marketing and fulfillment
business;
WHEREAS, Employer desires to continue to employ Employee upon the terms
and conditions set forth below and Employee desires to accept such continued
employment upon such terms and conditions; and
WHEREAS, Employer and Employee desire to set forth in writing the terms
and conditions of their agreements and understandings with respect to Employee's
employment by Employer.
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT
Employer hereby employs Employee, and Employee hereby accepts
employment by Employer, upon the terms and conditions set forth in this
Employment Agreement.
2. TERM
Subject to the provisions for earlier termination set forth in
Section 9 hereof, this Employment Agreement shall commence on the date hereof
and shall continue until 5:00, p.m., December 31, 2000 (the "Employment Term").
3. EMPLOYEE'S REPRESENTATIONS AND WARRANTIES
Employee represents and warrants to Employer that Employee is
free to accept employment with Employer as contemplated herein and has no other
written or oral obligations or commitments of any kind or nature which would in
any way interfere with Employee's acceptance of employment pursuant to the terms
hereof or the full performance of Employee's obligations hereunder or the
exercise of Employee's best efforts in Employee's employment hereunder or which
would otherwise pose any conflict of interest.
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4. DUTIES AND EXTENT OF SERVICES
A. DUTIES. Employee's duties and responsibilities hereunder
shall be those reasonably assigned to Employee from time to time by Employer,
consistent with the following: Employee shall, unless and until otherwise
determined by Employer, serve as Employer's Senior Vice President-Human
Resources, and shall, subject to the direction of Employer's President, have
responsibility to oversee and supervise all activities relating to Employer's
human resources. Employee shall report directly to either Employer's Chief
Executive Officer, President, Chief Operating Officer or Executive Vice
President. Employee agrees to devote Employee's full and exclusive time, skill,
attention and energy diligently and competently to perform the duties and
responsibilities properly assigned to Employee hereunder, or pursuant hereto.
B. RULES AND REGULATIONS. Employee agrees to abide by the
rules and regulations of Employer promulgated by Employer from time to time with
respect and applicable to Employer's similarly-situated employees generally,
which are all hereby incorporated by reference and made a part of this
Employment Agreement, provided such rules and regulations do not abrogate any of
the terms and condition contained within this Employment Agreement.
5. COMPENSATION
A. BASE COMPENSATION. Subject to the provisions of Section 9
of this Employment Agreement, Employer shall pay salary to Employee ("Salary")
based upon the rate of $125,000 per annum from the date hereof until October 1,
1998, at which time Employer's President shall review Employee's Salary.
Employer may decide, in its sole discretion, to increase (but not to decrease)
the Salary at that time or at any time during 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. BONUS COMPENSATION. Employee shall receive an annual bonus,
the amount of which shall be determined by Employer in its sole and absolute
discretion (the "Bonus Amount") in a manner consistent with Employer's then
current bonus plan which may be amended from time to time. Each annual Bonus
Amount shall be paid on or before March 31 of each year of the Employment Term.
The Bonus Amount payable on or before each March 31 shall be based upon
Employee's performance during the entire year immediately preceding such March
31. Each Bonus Amount shall be subject to
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payroll deductions and tax withholdings in accordance with Employer's usual
payroll practices and as required by law.
6. FRINGE BENEFITS AND EXPENSES
A. EMPLOYEE BENEFITS. Employee shall be entitled to such
benefits and fringe benefits (such as 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.
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.
7. VACATIONS
Employee shall be entitled to four (4) weeks vacation each
full year of the Employment Term, with full compensation (and Employee shall be
entitled to be compensated for any unused vacation days upon termination of
employment). The periods during which Employee will be absent from work for
vacation shall be at the reasonable discretion of Employer.
8. FACILITIES
Employer shall provide and maintain (or cause to be provided
and maintained) such facilities, equipment, supplies and personnel as it
reasonably deems necessary for Employee's performance of Employee's duties and
responsibilities under this Employment Agreement.
9. TERMINATION OF EMPLOYMENT
A. TERMINATION EVENTS. Employee's employment under this
Employment 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 later defined) and receiving written notice of termination from Employer to
that effect. Employee may terminate Employee's employment under this Employment
Agreement without being in breach hereunder by giving written notification of
Employee's resignation to Employer which
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shall specify a resignation date no earlier than forty-five (45) days following
the date of delivery of such notice of resignation.
B. DEFINITIONS OF CAUSE AND DISABLED. For purposes of this
Employment 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) gross 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 (after at least two (2) prior notices of such conduct; or
(viii) breach by Employee of this Employment Agreement which, if curable, is not
cured by Employee within thirty (30) 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 Employment 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, subject to Employer's
right to set off any damages resulting from Employee's termination with Cause or
resignation effected without giving the required notice, the Salary, if any,
accrued and unpaid through the date of termination, and shall pay and provide to
Employee the amounts and items payable and to be provided under Section 6
through the date of such termination; and Employee shall not be entitled to any
other compensation, remuneration or other sums provided for in this Employment
Agreement or to which Employee might otherwise be entitled hereunder or at law
or in equity, including, without limitation, any accrued or unpaid Bonus Amount.
D. COMPENSATION UPON DEATH OR DISABILITY. Upon the death of
Employee, or termination of employment because Employee is Disabled, Employer
shall pay to Employee, 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
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time), within thirty (30) days following the date of Employee's death or
termination, the Salary and Bonus Amount, if any, accrued and unpaid through the
date of termination and shall pay and provide to Employee, Employee's legal
guardian or the legal representative of Employee's estate the amounts and items
payable and to be provided under Section 6 through the date of such termination;
and 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 Employment Agreement or to which Employee might otherwise be
entitled hereunder or at law or in equity.
E. COMPENSATION UPON ANY TERMINATION WITHOUT CAUSE,
SIGNIFICANT CHANGE IN SCOPE OF JOB RESPONSIBILITIES OR RESIGNATION AFTER A
CHANGE IN CONTROL. Notwithstanding anything in Subsection C. of this Section 9
to the contrary, in the event that Employer terminates Employee's employment
under this Employment Agreement without Cause at any time or Employee resigns or
quits Employer's employment within ninety (90) days of a significant change in
the scope of Employee's job responsibilities or Employee resigns or quits
Employer's employment within ninety (90) days after a Change of Control (as
defined hereinafter), 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 and Bonus Amount, if any, accrued and unpaid
through the date of termination or resignation and the amounts and items payable
or to be provided under Section 6 through the date of termination or
resignation, payable within thirty (30) days following termination or
resignation of employment, and (ii) the Salary that Employee would have received
during the one year period following the date of termination or resignation of
Employee's employment, as and when it would have been payable if Employee had
remained an employee of Employer for such additional one year period. Employee
shall not be entitled to the foregoing severance to the extent that Employee
receives or is entitled to receive compensation and/or benefits from new
employment with respect to employment services rendered during such one year
period. For purposes of this Subsection E., a "Change in Control" means that (1)
neither Xxxx Xxxxxx (for these purposes, counting all common stock directly or
indirectly beneficially owned by Xxxx Xxxxxx'x Affiliates) nor Xxxxx Xxxxxxx
(for these purposes, counting all common stock directly or indirectly
beneficially owned by Xxxxx Xxxxxxx'x Affiliates) beneficially owns at least 10%
of the issued and outstanding common stock of Employer or its successor, (2)
neither Xxxx Xxxxxx (for these purposes, counting all common stock directly or
indirectly beneficially owned by Xxxx Xxxxxx'x Affiliates) nor Xxxxx Xxxxxxx
(for these purposes, counting all common stock directly or indirectly
beneficially owned by Xxxxx Xxxxxxx'x Affiliates) is the stockholder
beneficially owning the
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highest number of issued and outstanding shares of common stock of Employer or
its successor, or (3) neither Xxxx Xxxxxx nor Xxxxx Xxxxxxx occupies the
position of Chairman of the Board, Chief Executive Officer or President of
Employer. "Affiliate" means, for these purposes, with respect to Xxxx Xxxxxx or
Xxxxx Xxxxxxx, an immediate family member of his, a trust principally for his
benefit and/or the benefit of his family members and/or lineal descendants, or a
family limited partnership or any other entity the direct or indirect beneficial
or pecuniary owners of which are, principally, him, his immediate family members
and/or trusts principally for the benefit of him, his family members and/or
lineal descendants. "Immediate family members" mean for these purposes, with
respect to Xxxx Xxxxxx or Xxxxx Xxxxxxx, his spouse, children, parents, siblings
or other lineal descendants."
F. KEY-MAN INSURANCE. In the event that Employer has obtained
or obtains a key-man insurance policy (the "Policy") on the life of Employee,
Employer shall be the sole owner thereof and all proceeds payable in respect
thereof shall be the property solely of Employer. In the event that Employee's
employment terminates for any reason other than Employee's death, Employee may
request that the Policy be assigned to Employee by giving written notice to
Employer to that effect. Subject to obtaining any requisite consent from the
insurer, Employer shall, if Employee has so requested, assign the Policy to
Employee subject to Employee's reimbursement to Employer of any premiums paid by
Employer which relate to any period following the date of termination of
Employee's employment, and the cash value, if any, of the Policy. In the event
that Employer desires to obtain any such Policy, Employee shall fully cooperate
in Employer's efforts, including submitting to medical exams and tests and
executing and delivering applications and information statements.
10. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
A. CONFIDENTIAL INFORMATION. Employee acknowledges that
Employee has been informed by Employer 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, know-how, records, products, services, cost 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
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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 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, Chief Executive Officer or President of Employer for the
benefit of Employer and/or as required in the course of employment) 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.
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 up 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.
11. COVENANT-NOT-TO-COMPETE
In view of (a) the Confidential Information known to and to be
obtained by or disclosed to Employee, and (b) the consideration payable to
Employee under this Employment Agreement, and as a material inducement to
Employer to enter into this Employment Agreement, Employee covenants and agrees
that, (i) for as long as Employee is employed by Employer and for a period of 24
months after the date Employee ceases for any reason to be employed by Employer,
Employee shall not, directly or indirectly, (A) sell any products or services
sold or offered by Employer to any person or entity who is or was a client of
Employer at any time during Employee's employment with Employer and for or to
whom Employer is performing services or selling products or for or to whom
Employer has performed services or sold products at any time during the one-year
period ending on Employee's termination of employment, or (B) solicit the
services of, or hire, directly or indirectly, whether
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on Employee's own behalf or on behalf of others, any managerial or executive
employee, account manager or programmer or information services employee of
Employer or who was or is employed by Employer at any time during the two-year
period ending on the date of termination of Employee's employment or the
two-year period commencing on the date of termination of Employee's employment,
or (ii) for as long as Employee is employed by Employer and for a period of 12
months after the date Employee ceases for any reason to be employed by Employer,
Employee shall not, directly or indirectly, engage in any venture, enterprise,
activity or business, passively or actively, as an owner, consultant, adviser,
participant, employee or agent or in any other capacity, competitive with the
business of Employer anywhere within the continental United States. 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 and other legitimate
business interests.
12. EMPLOYER'S REMEDIES FOR BREACH OF SECTIONS 10 AND 11
Employee covenants and agrees that if Employee shall violate
or breach any of Employee's covenants or agreements provided for in Section 10
or 11 hereof, 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 10 or 11 hereof, Employer shall be entitled to a temporary
and permanent injunction or any other appropriate decree of specific performance
or equitable relief from a court of competent jurisdiction, applying the laws of
the State of Florida, in order to prevent, prohibit or restrain any such breach
or violation or threatened or imminent breach or violation by Employee, by
Employee's partners, agents, representatives, servants, employers or employees
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.
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13. REASONABLENESS OF RESTRICTIONS
A. REASONABLENESS. Employee acknowledges that any breach or
violation of Section 10 or 11 hereof will cause irreparable injury and damage
and incalculable harm to Employer and that it would be very difficult or
impossible to measure all of the damages resulting from any such breach or
violation. Employee further acknowledges that Employee has carefully read and
considered the provisions of Sections 10, 11 and 12 hereof and, having done so,
agrees that the restrictions and remedies set forth in such Sections (including,
but not limited to, the time period, geographical and types of restrictions
imposed) are fair and reasonable and are reasonably required for the protection
of the business, trade secrets, interests and good will of Employer.
B. SEVERABILITY. Employee understands and intends that each
provision and restriction agreed to by Employee in Sections 10, 11 and 12 hereof
shall be construed as separate and divisible from every other provision and
restriction. In the event that any one of the provisions of, or restrictions in,
Sections 10, 11 and/or 12 hereof shall be held to be invalid or unenforceable,
and is not reformed by a court of competent jurisdiction (which a court, in lieu
of striking a provision entirely, is urged by the parties to do), the remaining
provisions thereof and restrictions therein shall nevertheless continue to be
valid and enforceable as though the invalid or unenforceable provisions or
restrictions had not been included. In the event that any such provision
relating to time period, geographical and/or type of restriction shall be
declared by a court of competent jurisdiction to exceed the maximum or
permissible time period, geographical or type of restriction such court deems
reasonable and enforceable, said time period, geographical and/or type of
restriction shall be deemed to become and shall thereafter be the maximum time
period or geographical area and/or type of restriction which such court deems
reasonable and enforceable.
C. SURVIVABILITY. The restrictions, acknowledgments, covenants
and agreements of Employee set forth in Sections 10, 11, 12 and 13 of this
Employment Agreement shall survive any termination of this Employment Agreement
or of Employee's employment (for any reason, including expiration of the
Employment Term).
14. LAW APPLICABLE
This Employment Agreement shall be governed by and construed
pursuant to the laws of the State of Florida.
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15. NOTICES
Any notices required or permitted to be given pursuant to this
Employment 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 President, if mailed to Employer, and to Employee's then current residence,
if mailed to Employee.
16. SUCCESSION
This Employment Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective legal representatives,
heirs, assignees and/or successors in interest of any kind whatever; PROVIDED,
HOWEVER, that Employee acknowledges and agrees that Employee cannot assign or
delegate any of Employee's rights, duties, responsibilities or obligations
hereunder to any other person or entity. Employer shall have the right to assign
its rights and delegate its duties under this Employment Agreement, provided
that, in the event of any such assignment, Employer shall remain liable for all
of its obligations hereunder.
17. ENTIRE AGREEMENT
This Employment Agreement constitutes the entire final
agreement between the parties with respect to, and supersedes any and all prior
and contemporaneous agreements 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.
18. SEVERABILITY
If any provision of this Employment 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 Employment Agreement, and this Employment Agreement
shall be carried out as if such invalid or unenforceable provision were not
herein contained.
19. NO WAIVER
A waiver of any breach or violation of any term, provision or
covenant herein contained shall not be deemed a
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continuing waiver or a waiver of any future or past breach or violation. No
oral waiver shall be binding.
20. ATTORNEYS' FEES
In the event that either of the parties to this Employment
Agreement institutes suit against the other party to this Employment Agreement
to enforce or declare any of their respective rights hereunder, the prevailing
party in such action shall be entitled to recover from the other party all
reasonable costs thereof, including reasonable attorneys' and paralegals' fees
and costs incurred before and at trial and at all tribunal levels, and whether
or not suit or any other proceeding is instituted.
21. COUNTERPARTS
This Employment 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.
22. INDEPENDENT COUNSEL
EMPLOYER STRONGLY RECOMMENDS TO EMPLOYEE THAT EMPLOYEE RETAIN
INDEPENDENT LEGAL COUNSEL TO ADVISE EMPLOYEE WITH RESPECT TO THIS EMPLOYMENT
AGREEMENT BEFORE EMPLOYEE SIGNS IT.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands on
the day and year first above written.
EMPLOYER:
PRECISION RESPONSE CORPORATION, a
Florida corporation
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, President
EMPLOYEE:
/s/ Xxxxxx Xxxxxx
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XXXXXX XXXXXX
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