1
EXHIBIT 10.35
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of February 19, 1997, but effective as
of January 2, 1997, 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 XXXXXXX X. XXXXX, XX. (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 employ Employee upon the terms and
conditions set forth below and Employee desires to accept 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, Employee's term of employment under this Employment Agreement
shall commence on January 2, 1997 (the date on which Employee became an employee
of Employer), and shall continue until 5:00, p.m., January 1, 1998 (the
"Employment Term").
2
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 which would interfere with Employee's
acceptance of employment pursuant to the terms hereof or the full performance of
Employee's obligations hereunder. Notwithstanding any of the foregoing to the
contrary, Employee shall be permitted to fulfill all of his contractual
obligations to the Miami Dolphins.
4. DUTIES AND EXTENT OF SERVICES
Employee's duties and responsibilities hereunder shall be those
reasonably assigned to Employee from time to time by Employer. Employee shall,
unless and until otherwise determined by Employer, serve as Employer's Senior
Vice President-Client Relations and shall, subject to the last sentence of
Section 3 of this Agreement, on an active basis, subject to the direction of
Employer's Chief Executive Officer, President, and Chief Operating Officer,
attend to matters in the areas of client relations, overall client service and
satisfaction, and generation of new client prospects and new clients. Employee
shall report directly to Employer's President, or as otherwise directed from
time to time by Employer's Chief Executive Officer or President.
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 $150,000 per annum. Employer may decide, in its sole
discretion, to increase (but not to decrease) the Salary 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 for
the 1997 calendar year the amount of which shall be determined by Employer in
its discretion (the "Bonus Amount"). The Bonus Amount shall be paid on or before
March 31, 1998. The Bonus Amount shall be subject to payroll deductions and tax
2
3
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 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.
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 three (3) weeks vacation each full
year of the Employment Term, with full compensation (provided, however, that
Employee shall not be entitled to be compensated for any unused vacation days
upon termination of employment). The periods during which Employee shall be
absent from work for vacation shall be at the reasonable discretion of Employer.
8. FAIR MARKET VALUE STOCK OPTIONS
Employer acknowledges that Employer has, on the date Employee
commenced employment (January 2, 1997), granted to Employee stock options (the
"FMV Stock Options") each to acquire one (1) share of Employer's common stock
(200,000 FMV Stock Options in total), pursuant to the Precision Response
Corporation 1996 Incentive Stock Plan (the "Plan") and the Stock Option
Agreement the form of which is attached as Exhibit "A" to this Employment
Agreement (the "FMV Stock Option Agreement").
3
4
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 ninety (90) 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) 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 Employment 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 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, the Salary, if any,
4
5
accrued and unpaid through the date of 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, if any, accrued and unpaid through
the date of 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. In the event that
Employer terminates Employee's employment under this Employment 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, and (ii) the Salary that Employee would have received during the
period following termination through the expiration of the Employment Term, as
and when it would have been payable if Employee had remained an employee of
Employer until expiration of the Employment Term.
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 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
5
6
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, 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 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.
6
7
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 substantial consideration paid
and payable to Employee under this Employment Agreement, and as a material
inducement to Employer to enter into this Employment Agreement and the FMV Stock
Option 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 or account manager or programmer or other information
services personnel of Employer who is employed by Employer 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. 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. LAW APPLICABLE
This Employment Agreement shall be governed by and construed
pursuant to the laws of the State of Florida.
13. 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.
7
8
14. 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.
15. 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.
16. 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.
17. 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.
18. INDEPENDENT CONTRACTOR AGREEMENT
That certain Independent Contractor Agreement, dated as of July 26,
1996, between Employer and Employee is hereby cancelled as of January 2, 1997
and is of no further force or effect. The stock options granted to Employee in
connection with such agreement shall be unaffected by such cancellation.
8
9
19. 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, President
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------------
XXXXXXX X. XXXXX, XX.
9
10
EXHIBIT "A"
11
PRECISION RESPONSE CORPORATION
STOCK OPTION AGREEMENT
Agreement dated as of the 2nd day of January, 1997 (the "Date of
Grant") between Precision Response Corporation, a Florida corporation (and,
collectively with its subsidiaries, if any, the "Company") with its principal
office at 0000 X.X. 000xx Xxxxxx, Xxxxx, Xxxxxxx 00000, and Xxxxxxx X. Xxxxx,
Xx., at the address set forth beneath such person's signature on the signature
page of this Agreement ("Optionee").
1. Grant of Options
The Company grants to Optionee, on the terms and conditions set
forth below, options (the "Options") to purchase up to 200,000 shares
(individually a "Share" and collectively the "Shares") of Precision Response
Corporation common stock (the "Common Stock"), par value $.01 per share, for a
price of $35.38 per Share (the "Option Price"), subject to adjustment as
provided in Paragraph 3 below. Subject to the limitation set forth in the
Precision Response Corporation 1996 Incentive Stock Plan (the "Plan"), a copy of
which is attached hereto and incorporated herein by reference, that the
aggregate Fair Market Value (as defined in the Plan and as determined as of the
time the option is granted) of the shares of Common Stock with respect to which
Incentive Stock Options (as defined in and pursuant to the Plan) are exercisable
for the first time by a participant during any calendar year (under all option
plans of the Company) shall not exceed $100,000, the Options shall be designated
as Incentive Stock Options to the maximum extent permitted by law and under the
Plan. To the extent that the number of Options which vest in any calendar year
pursuant to the vesting schedule set forth below exceeds the number which may
properly be designated as Incentive Stock Options pursuant to applicable law or
under the Plan, such excess number of Options shall, pursuant to the provisions
of Section 6(e) of the Plan, be designated as Nonqualified Stock Options (as
defined in and pursuant to the Plan).
2. Terms and Conditions of Options
(a) Option Price
Subject to paragraph 3 hereof, the Option Price shall be the
Fair Market Value per share of Common Stock on the Date of Grant, which is
$35.38 per Share.
(b) Vesting of Options
Subject to such further limitations as are provided for herein,
the Options shall vest, if at all (and be exercisable once vested) in the
following amounts:
12
(i) Options to purchase 66,666 of the Shares shall vest on April
2, 1997;
(ii) Options to purchase an additional 66,667 of the Shares shall
vest on April 2, 1998; and
(iii) Options to purchase the remaining 66,667 Shares shall vest
on April 2, 1999.
Notwithstanding the vesting schedule set forth above, the Optionee
shall become immediately 100% vested in all outstanding Options and may
immediately exercise such Options subject to the time frames set forth in
subparagraph (e) below, upon (x) a Change In Control (as defined below), or (y)
termination of Optionee's employment by the Company other than by reason of
breach of an employment agreement with the Company or for cause. For purposes of
this Agreement, a "Change In Control" means (1) neither Xxxx Xxxxxx (for these
purposes, counting all common stock owned by Xxxx Xxxxxx'x Affiliates) nor Xxxxx
Xxxxxxx (for these purposes, counting all common stock owned by Xxxxx Xxxxxxx'x
Affiliates) beneficially owns at least 10% of the issued and outstanding common
stock of the Company, (2) neither Xxxx Xxxxxx (for these purposes, counting all
common stock owned by Xxxx Xxxxxx'x Affiliates) nor Xxxxx Xxxxxxx (for these
purposes, counting all common stock owned by Xxxxx Xxxxxxx'x Affiliates) is the
stockholder of the Company beneficially owning the highest number of issued and
outstanding shares of common stock of the Company, or (3) neither Xxxx Xxxxxx
nor Xxxxx Xxxxxxx occupies the position of Chairman of the Board, Chief
Executive Officer or President of the Company. "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
other entity the 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. Other than the accelerated vesting
provided for herein due to termination of Optionee's employment by the Company
other than by reason of breach of an employment agreement with the Company or
for cause, Optionee shall not become vested in any Options upon or subsequent to
the termination of his employment regardless of any exercise period provided in
subparagraph (e) below.
(c) Term of Options
The Options may be exercised by the Optionee in whole or in part
from time to time, but only during the period beginning on the date of this
Agreement and ending January 1, 2004, subject in all cases, however, to
subparagraphs (b) and (e) of this paragraph 2, paragraph 3 and the other
provisions of this Agreement and the Plan. In no event shall any of the Options
granted under this Agreement be exercisable after the expiration of 10 years
from the Date of Grant of such Options.
2
13
(d) Non-transferability of Options
Options shall not be transferable by Optionee other than by will
or by the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined by the Internal Revenue Code of 1986, as amended
(the "Code") or Title I of the Employment Retirement Income Security Act, or
the rules thereunder, and, except with respect to a qualified domestic
relations order as aforesaid, may be exercised during Optionee's lifetime only
by Optionee. If any Options are exercised after Optionee's death, the Company
may require evidence reasonably satisfactory to it of the appointment and
qualification of Optionee's personal representatives and their authority and of
the right of any heir or distributee to exercise such Options.
(e) Termination of Employment
If Optionee's employment with the Company terminates the
unexercised portion of any of the Options granted under this Agreement shall
automatically and without notice terminate and become null and void at the time
of the earliest to occur of the following:
(1) The expiration of seven (7) years from the Date of Grant;
(2) The expiration of three months from the date of termination of
the Optionee's employment (other than a termination described in subparagraph
(3), (4) or (5) below); provided, that, if the Optionee shall die during such
three-month period, the time of termination of the unexpired portion of any such
Option shall be determined under the provision of subparagraph (4) below;
(3) The expiration of one year from the date of termination of the
employment of an Optionee due to permanent and total disability (other than a
termination described in subparagraph (5) below);
(4) The expiration of eighteen (18) months following the issuance
of letters testamentary or letters of administration to the personal
representative, executor or administrator of a deceased Optionee, if the
Optionee's death occurs either during his employment by the Company or during
the three-month period following the date of termination of such employment
(other than a termination described in subparagraph (5) below), but in no event
later than two years after the Optionee's death;
(5) The date of termination of the Optionee's employment by the
Company if such termination constitutes or is attributable to a breach by the
Optionee of an employment agreement with the Company, or its parent, if any, or
if the Optionee has been discharged for cause. The Committee (as defined in the
Plan) shall have the right to determine whether the Optionee has been discharged
for cause and the date of such discharge, and such determination of the
Committee shall be final and conclusive.
3
14
Neither this Agreement nor any Option granted hereunder shall confer on
Optionee any right to continue in the Company's employ, or limit in any respect
the Company's right (in the absence of a specific written agreement to the
contrary) to terminate Optionee's employment at any time with or without cause.
(f) Exercise of Options
Subject to the limitations set forth herein and the
provisions hereof, the Options may be exercised only by written notice to the
Company, at its principal business office or such other office as the Committee
may from time to time direct, which shall contain provisions consistent with
the provisions of the Plan as the Committee may from time to time prescribe and
shall specify the number of optioned Shares being purchased. Not less than one
hundred (100) Shares may be purchased at any one time upon exercise of the
Options unless the number purchased is the total number then purchasable under
this Agreement. Subsequent to the grant of any Options which are not
immediately exercisable in full, the Committee, at any time before complete
termination of such Options, may accelerate the time or times at which such
Options may be exercised in whole or in part. Any notice of exercise of Options
shall be accompanied by payment of the full purchase price for the Shares being
purchased: (i) by check payable to the Company; or (ii) with the prior consent
of the Committee, by tendering previously acquired shares of Common Stock
having a fair market value (determined as of the date such Options are
exercised and in the same manner as the Fair Market Value of the Option Price
is determined under the Plan) equal to all of the purchase price; or (iii) by
any combination of (i) and (ii). The Company shall have no obligation to
deliver the Shares being purchased pursuant to the exercise of any Options, in
whole or in part, until the aforesaid payment in full of the purchase price
therefor is received by the Company.
(g) Issuance of Shares
The exercise of Options granted hereunder is subject to the
condition that if at any time the listing, registration or qualification of the
Shares covered by the Options upon any securities exchange or under any state or
federal law is necessary as a condition of or in connection with the purchase or
delivery of Shares, the delivery of any or all Shares pursuant to exercise of
the Options may be withheld unless and until such listing, registration or
qualification shall have been effected. Optionee agrees to comply with any and
all legal requirements relating to Optionee's resale or other disposition of any
Shares acquired under this Agreement. The Committee may require, as a condition
of exercise of any Options, that the Optionee represent, in writing that the
Shares received upon exercise of the Options are being acquired for investment
and not with a view to distribution and agree that the Shares will not be
disposed of except pursuant to an effective registration statement under the
Securities Act of 1933, as amended, and only after any required qualifications
under applicable state securities laws, unless the Company shall have received
an opinion of counsel satisfactory to the Company that such disposition is
exempt from such registration and qualification. There may be endorsed on
certificates representing Shares issued upon the exercise of Options such
legends referring to the foregoing
4
15
representations or any applicable restrictions on resale as the Committee, in
its discretion, shall deem reasonably appropriate, and the Company may place
such stop transfer orders with its registrar and transfer agent as it deems
reasonably appropriate.
(h) Rights as a Shareholder
Optionee shall acquire none of the rights of a shareholder of
the Company under this Agreement unless and until certificates for such Shares
are issued to Optionee upon the exercise of Options.
(i) Six-Month Holding Period
Optionee acknowledges that in no event may any Shares
acquired upon exercise of any Options be sold or otherwise disposed of until
after six (6) months have elapsed from the Date of Grant except, in the event
of Optionee's death during such period, for a sale by the executors or
administrators of Optionee's estate relying on Rule 16a-2(d)(1)(i) of the
Securities Exchange Act of 1934, as amended.
3. Adjustment Upon Changes in Capitalization, etc.
In the event of any stock split, stock dividend,
reclassification or recapitalization which changes the character or amount of
the Company's outstanding Common Stock while any portion of any Options
theretofore granted pursuant to this Agreement are outstanding but unexercised,
the Committee shall make such adjustments in the character and number of Shares
subject to such Options and in the Option Price as shall be equitable and
appropriate in order to make such Options, as nearly as may be practicable,
equivalent to such Options immediately prior to such change; provided, however,
that no such adjustment shall give any Optionee any additional benefits under
this Agreement; and provided further, that, if any such adjustment is made by
reason of a transaction described in section 424(a) of the Code, it shall be
made so as to conform to the requirements of that section and the regulations
thereunder.
If any transaction (other than a change specified in the
preceding paragraph) described in section 424(a) of the Code affects the
Company's Common Stock subject to any unexercised Option theretofore granted
hereunder (hereinafter for purposes of this paragraph 3 referred to as the "old
option"), the Committee or any surviving or acquiring corporation may take such
action as it deems appropriate, and in conformity with the requirements of that
section and the regulations thereunder, to substitute a new option for the old
option, in order to make the new option, as nearly as may be practicable,
equivalent to the old option, or to assume the old option.
If any such change or transaction shall occur, the number and
kind of Shares to be issued upon the exercise of any Options shall be adjusted
to give effect thereto.
5
16
4. Optionee Bound by Plan
The Optionee hereby acknowledges receipt of a copy of the Plan and
agrees to be bound by the terms and provisions thereof, regardless of whether
such provisions have been set forth in this Agreement. In the event of any
conflict between this Agreement and the Plan, the Plan shall govern.
5. Application of Funds
The proceeds received by the Company from the sale of Shares subject
to Options may be commingled with any other corporate funds and used for any
corporate purpose.
6. General
(a) Any communication in connection with this Agreement shall be
deemed duly given when delivered in person or mailed by certified or registered
mail, return receipt requested, to Optionee at his or her address listed on the
signature page hereof or such other address of which Optionee shall have advised
by similar notice, or to the Company or Committee at the Company's then
executive offices.
(b) This Agreement sets forth the parties' final and entire
agreement with respect to its subject matter, may not be changed or terminated
orally and shall be governed by and construed in accordance with the internal
law of the State of Florida. This Agreement shall bind and inure to the benefit
of Optionee, and his heirs, distributees and personal and legal representatives,
and the Company and its successors and assigns.
(c) As a condition of the granting of the Options hereunder,
Optionee agrees, for himself and his heirs, distributees and his personal and
legal representatives, that any dispute or disagreement which may arise under or
as a result of or pursuant to this Agreement shall be determined and resolved by
the Committee in its sole discretion, and any interpretation by the Committee of
the terms of this Agreement or the Plan shall be final, binding and conclusive.
(d) Wherever from the context it appears appropriate, each term
stated in either the singular or the plural shall include the singular and the
plural, and pronouns stated in the masculine, the feminine or the neuter gender
shall include the masculine, feminine and neuter.
6
17
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
Optionee: PRECISION RESPONSE CORPORATION,
a Florida corporation
/s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------ By: /s/ Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxx, Xx. ----------------------------------
2968 Xxxxxxxxx Xxxxx Xxxxxxx, President
Ft. Xxxxxxxxxx, Xxxxxxx 00000
7
