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EXHIBIT 10.58
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated and effective as of November 15, 1999, 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 X. XXXXXX (hereinafter referred to as "Employee").
W I T N E S S E T H:
WHEREAS, Employer is a Florida corporation engaged in interactive
customer service and marketing through the integration of its teleservicing,
Internet, database management and marketing and fulfillment capabilities;
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, 2001 (the "Initial Employment
Term"), with the Initial Employment Term to be automatically renewed and
extended for consecutive additional one year periods unless, at least ninety
(90) days prior to the expiration of the Initial Employment Term or any one year
renewal period thereof, either party hereto delivers to the other party hereto
written notice of such party's termination of this Agreement at the expiration
of the Initial Employment Term or any one year renewal period thereof (as the
case may be). The Initial Employment Term together with any or all one year
renewal periods thereof are hereinafter collectively referred to as the
"Employment Term".
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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.
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 Vice President and Treasurer,
subject to the direction of Employer's Chief Financial Officer. Employee shall
report directly to Employer's Chief Financial Officer. 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.
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 $ 140,000 per annum from the date hereof until April 1,
2000, at which time Employer's Chief Financial Officer 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 in a manner consistent with Employer's then current bonus plan which
may be amended from time to time (the "Bonus Amount"). Each annual Bonus Amount
shall be paid on or before April 1st of each year of the Employment Term. The
Bonus Amount payable on or before each April 1st shall be based upon Employee's
performance during the calendar year immediately preceding such April 1st. Each
Bonus Amount shall be subject to payroll deductions and tax withholdings in
accordance with Employer's usual payroll practices and as required by law.
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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 30 days of paid time off ("PTO")
for vacation, personal and sick days each full year of the Employment Term, with
full compensation (provided, however, that Employee shall not be entitled to be
compensated for any unused PTO days upon termination of employment). The PTO
days are exclusive of any Employer recognized holidays. The periods during which
Employee shall 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 shall specify a resignation date no
earlier than thirty (30) 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
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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 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 time), within thirty (30) days following the date of
Employee's death or termination, the Salary and declared 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 TERMINATION WITHOUT CAUSE AND RESIGNATION
UPON SIGNIFICANT CHANGE IN SCOPE OF JOB RESPONSIBILITIES OR RELOCATION.
Notwithstanding anything in subsection C. of this Section 9, in the event that
Employer (or its successor) terminates Employee's employment under this
Employment Agreement without Cause (including, without limitation, upon a Change
in Control as hereinafter defined) or Employee resigns Employer's employment
within ninety (90) days of either a significant change in the scope of
Employee's job responsibilities or Employer's requiring Employee, without
Employee's prior written consent, to relocate Employee's office to a location
other than northern Miami-Dade County (i.e, not any further south in MiamiDade
County than the location of Employer's executive offices as of the date of this
Employment Agreement), Broward County or Palm Beach County, Florida, Employee's
sole and exclusive compensation and remedy hereunder shall be to receive from
Employer, and Employer shall pay and
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provide, (i) the amount of Salary and declared Bonus Amount, if any, accrued and
unpaid through the date of termination (provided, however, that, in the event
that a Bonus Amount for the calendar year in which the date of termination has
occurred and/or prior calendar year has not been declared prior to the date of
termination, the Bonus Amount for such calendar year shall be determined on a
pro-rata basis consistent with Employer's bonus plan for such calendar year and
Employer's overall accrual for employee bonuses for the relevant calendar
year(s) through the date of termination), and the amounts and items payable or
to be provided under Section 6 through the date of termination, payable within
thirty (30) days following termination of employment, (ii) the Salary and the
amounts and items payable or to be provided under Section 6.A. that Employee
would have received during the one year period following the date of termination
of Employee's employment, as and when it would have been payable or been
provided if Employee had remained an employee of Employer for such additional
one year period, provided, however, that with respect to any such benefits
Employer shall have the right, if unable to provide to Employee or Employer
otherwise elects, in its sole discretion, to pay Employee the monetary
equivalent of any such benefits in lieu of providing same to Employee, and (iii)
an amount equal to the average of the Bonus Amount (and/or annual bonus amount,
as the case may be) paid to Employee during the last two years prior to the date
of termination, which amount shall be payable in twelve equal consecutive
monthly installments commencing one month from the date of termination. For
purposes of this Subsection E., (x) 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 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; (y) "Affiliate" means, 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; and (z) "Immediate family members" mean, 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 keyman 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
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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, technology, know-how, records, products, services, cost information,
inventions, computer and Internet software, 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 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. 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 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 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
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Agreement, and as a material inducement to Employer to enter into this
Employment Agreement and to continue to employ Employee, 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 on Employee's own
behalf or on behalf of others, any managerial or executive employee, account
manager, programmer, information services employee (including, without
limitation, network or other information services or Internet operation
employee), database management or marketing employee or financial or accounting
personnel of Employer 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, 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 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).
D. DEFINITION OF EMPLOYER. For purposes of Sections 10, 11, 12
and 13 of this Employment Agreement, the term "Employer" includes the Employer
and any parent corporation of Employer and all direct and indirect subsidiaries
of Employer and its parent corporation (if any).
14. LAW APPLICABLE
This Employment Agreement shall be governed by and construed
pursuant to the laws of the State of Florida.
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
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attention of the President, if sent to Employer, and to Employee's then current
residence, if sent 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.
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 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.
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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
----------------------------------------
Xxxxx Xxxxxxx, Chief Executive Officer
EMPLOYEE:
/s/ XXXXXX X. XXXXXX
-------------------------------------
XXXXXX X. XXXXXX
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FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (this "Amendment") dated and
effective as of JANUARY 13, 2000, 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 X. Xxxxxx hereinafter
referred to as ("Employee").
W I T N E S S E T H
WHEREAS, Employer currently employs Employee pursuant to an Employment
Agreement dated November 15, 1999 by and between Employer and Employee; and
WHEREAS, Employer and Employee desire to amend the Employment Agreement
as set forth herein.
NOW THEREFORE, the parties agree that the Employment Agreement shall be
amended as of and after the date hereof as follows:
Section 9 is hereby amended by the addition of the following
Subsection G:
G. EXCISE TAX TREATMENT. If any of the payments or benefits to be
received by Employee in connection with a Change in Control
(as defined in Subsection 9E.) pursuant to the terms of this
agreement or any other plan, arrangement or agreement (such
payments or benefits the "Total Payments") will be subject to
any excise tax imposed by Section 4999 of the Internal Revenue
of 1986, as amended (the "Code"), then, after taking into
account any reduction in the Total Payments provided by
Section 280G of the Code in such other plan, arrangement or
agreement, the payments made pursuant to Subsection 9E. of
this Employment Agreement shall be reduced to the extent
necessary so that no portion of the Total Payments is subject
to the excise tax but only if (i) the net amount of such Total
Payments, as so reduced (and after subtracting the net amount
of federal, state and local income taxes on such reduced Total
Payments) is greater than or equal to (ii) the net amount of
such Total Payments without such reduction (but after
subtracting the net amount of federal, state and local income
taxes on such Total Payments and the amount of excise tax to
which the Employee would be subject in respect of such
unreduced Total Payments).
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
duly executed as of the day and year first above written.
PRECISION RESPONSE CORPORATION
BY: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Exec. Vice Pres.
/S/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
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