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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of April 14,1999 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
XXXXXXX 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 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
A. 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 April 26, 1999 and shall continue until 5:00, p.m.,
April 25, 2001 (the "Employment Term").
B. The Employment Term shall on April 25, 2001
automatically extend for an additional one-year period, unless prior to January
25, 2001 either party gives to the other written notice of intent not so to
renew.
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
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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.
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 consistent
with this Section. Employee shall, unless and until otherwise determined by
Employer, serve as Employer's Senior Vice President- Information Services
(which shall be effective upon appointment of Employee to such office by
Employer's Board of Directors) and Chief Information Officer, and shall, on an
active, full-time basis, subject to the direction of Employer's Chief Executive
Officer and President, have overall responsibility to supervise and conduct
Employer's day-to-day software, Internet and information technology
development, support and operations. 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 $185,000 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, 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, but shall not exceed forty percent
(40%) of Employee's Salary, except at the sole discretion of Employer (the
"Bonus Amount"). Each annual Bonus Amount shall be paid on or before April 30th
of each year of the Employment Term. The Bonus Amount payable on or before each
April 30th shall be based upon Employee's performance during the calendar year
immediately preceding such April 30th. 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.
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.
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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.
C. Relocation Expenses.
(i) Employer agrees to reimburse to Employee, based on properly
documented receipts, a maximum amount of $65,000 (and further subject to the
category maximums hereinafter set forth) for the following relocation expenses
to the extent reasonably incurred by Employee in moving himself and his family
and their personal property and effects from Pacific Palisades, California to
south Florida:
(a) Up to a maximum reimbursement of $15,000 for
packing and moving household goods;
(b) Up to a maximum reimbursement of $10,000 for
airfare and automobile rental expenses incurred by Employee and his immediate
family in commuting from Pacific Palisades, California to south Florida in
connection with house hunting, employment related matters prior to commencement
of the Employment Term and after the commencement of the Employment Term for
family purposes until Employee has completed the relocation of his family to
south Florida; and
(c) Up to a maximum reimbursement of $40,000 for
temporary living expenses and other housing costs of Employee and his family
while in the process of relocating to south Florida, and for reasonable and
customary closing costs relating to the sale by Employee of his primary
residence in Pacific Palisades, California, and the purchase by Employee of a
residence in south Florida including, but not limited to, real estate
commissions and financing fees.
(ii) Upon execution of this Agreement by Employer and Employee,
Employer shall advance to Employee the sum of $20,000 for the relocation
expenses to be incurred and documented in accordance with subsection (i) of
this Section 6.C.; and
(iii) If Employee is not employed by Employer, for any reason other
than termination without Cause (as hereinafter defined), continuously for at
least the one year period commencing with Employee's first day of employment
pursuant to this Agreement, Employee shall repay Employer any and all amounts
paid to Employee for relocation expenses pursuant to subsection (i) of this
Section 6.C., up to and including $65,000.
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7. VACATION, PERSONAL AND SICK DAYS
Employee shall be entitled to 29 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. In addition, any PTO days to be
used during the first ninety (90) days of the Employment Term shall require
prior approval of the President.
8. FAIR MARKET VALUE STOCK OPTIONS
Employer agrees that Employer shall, on the date Employee
commences employment hereunder, grant to Employee stock options (the "FMV Stock
Options") each to acquire one (1) share of Employer's common stock (60,000 FMV
Stock Options in total), pursuant to the Precision Response Corporation Amended
and Restated 1996 Incentive Stock Plan (the "Plan") and the Stock Option
Agreement attached as Exhibit "A" to this Employment Agreement (the "FMV Stock
Option 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 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
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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, 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.A. and B. 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
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 (or its successor) terminates Employee's employment under
this Employment Agreement without Cause (including, without limitation, upon a
Change in Control, as hereinafter defined), Employee's sole and exclusive
compensation and remedy hereunder shall be to receive from Employer, and
Employer shall pay and provide, (i) the amount of Salary and declared Bonus
Amount, if any, accrued and unpaid through the date of termination, and the
amounts and items payable or to be provided under Section 6.A. and B. through
the date of termination, payable within thirty (30) days following termination
of employment, (ii) the Salary that Employee would have received during the
period following termination of Employee's employment through the expiration of
the period ending on the 180th day following the date of termination of
Employee's employment or the expiration of the Employment Term (whichever is
less), as and when it would have been payable or been provided if Employee had
remained an employee of Employer for such additional 180-day period or until
expiration of the Employment Term (as applicable). Employee shall not be
entitled to the foregoing severance set forth in item (ii) above to the extent
that
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Employee receives or is entitled to receive compensation or benefits from new
employment with respect to employment services rendered during such period. 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.
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
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
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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.
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 and employ
Employee, Employee covenants and agrees that, (i) 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, (A) sell any products or services sold or offered by Employer to
any person or entity 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) or database management or marketing employee 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
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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.
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
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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 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.
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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.
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.
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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 X. Xxxxxxx
-----------------------------------
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
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EXHIBIT "A"
PRECISION RESPONSE CORPORATION
STOCK OPTION AGREEMENT
Agreement dated as of the ___ day of __________, 1999 (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. Xxxxxx
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 60,000 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 $_____ 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 Amended and Restated 1996 Incentive Stock Plan,
as amended (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 not less than the Fair Market Value per share of Common Stock on the
Date of Grant, but in no event less than the par value per Share.
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(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:
YEAR FROM PERCENTAGE OF
DATE OF GRANT OPTIONS VESTED (%)
------------- ------------------
One (1) year from Date of Grant 33 1/3%
Two (2) years from Date of Grant 66 2/3%
Three (3) years from Date of Grant 100%
Optionee shall not become vested in any Options 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 Optionee in whole or
in part from time to time, but only during the period beginning on the date of
this Agreement and ending [seven years from the Date of Grant], 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.
(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;
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(2) The expiration of three months from the
date of termination of Optionee's employment by the Company (other than a
termination described in subparagraph (3), (4) or (5) below); provided, that,
if 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 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 Optionee's death;
(5) The date of termination of Optionee's
employment by the Company if such termination constitutes or is attributable to
a breach by Optionee of an employment agreement with the Company, or its
parent, if any, or if Optionee has been discharged for cause. The Compensation
Committee (the "Committee"), as provided in the Plan, shall have the right to
determine whether Optionee has been discharged for cause and the date of such
discharge, and such determination of the Committee shall be final and
conclusive.
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
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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 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
representations or any applicable restrictions on resale as the Committee, in
its discretion, shall deem reasonably appropriate, as well as 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.
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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.
4. Optionee Bound by Plan
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
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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 Optionee and Optionee's heirs, distributees and
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.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
OPTIONEE: PRECISION RESPONSE CORPORATION,
a Florida corporation,
By:
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Xxxxx Xxxxxxx, Chief Executive Officer
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Xxxxxxx X. Xxxxxx
Address:
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