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Exhibit 10.44
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
First Amendment to Employment Agreement (this "AMENDMENT"), dated as of
January 12, 2000 and effective as of the Effective Time (as defined below),
between Precision Response Corporation, a Florida corporation ("EMPLOYER"), and
Xxxxxxx X. Xxxxxx ("EMPLOYEE"). "EFFECTIVE TIME" has the meaning set forth in
the Merger Agreement described below.
Employer currently employs Employee pursuant to that certain Employment
Agreement, dated as of April 1, 1999, between Employer and Employee (the
"AGREEMENT");
Employer has entered into an Agreement and Plan of Merger (the "MERGER
AGREEMENT") with USA Networks, Inc., a Delaware corporation ("USAi") and a
wholly-owned subsidiary of USAi ("MERGER SUB"), pursuant to which Employer has
agreed to merge with and into Merger Sub, subject to certain terms and
conditions. It is a material condition to such merger (the "MERGER") that
Employee enter into this Amendment, and Employee has agreed to enter into this
Amendment in consideration of, among other things, the benefits to be received
by the Employee is connection with the Merger.
The parties agree that the Agreement shall be amended effective on and
after the Effective Time (whether or not the Employee continues to be employed
by the Employer at such time) as follows:
1. (a) Section 5.C. of the Agreement is deleted in its entirety, and
Employee hereby waives and releases any and all rights or benefits that he may
now have to be granted any stock options thereunder commencing after December
31, 1999 (but excluding the year ended December 31, 1999 in which it
acknowledged Employee was granted stock options thereunder).
(b) At or immediately following the Effective Time and provided that
Employee continues to be employed by the Company at such time, in consideration
of Employee's entering into this Amendment and continued employment with the
Company at the Effective Time, Employee shall be granted under USAi's 1997
Stock and Annual Incentive Plan a non-qualified stock option to purchase 25,000
shares of USAi common stock on standard terms and conditions for option grants
by USAi to its employees.
2. Section 9.A. of the Agreement is amended by adding the following
language at the end of clause (i) thereof ", provided that Employee may only
give such notice of resignation to Employer if Xxxxx Xxxxxxx has ceased to be
the Chief Executive Officer of the Company within the 90-day period immediately
preceding the giving of such notice and is not serving as the Chief Executive
Officer on the effective date of resignation specified in Employee's notice"
and by changing the time period in clause (i) of Section 9A. from "ninety (90)
days" to "thirty (30) days".
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3. The definition of "Constructive Termination" in the fifth sentence of
Section 9B. of the Agreement is amended by deleting the references to "Chairman
of the Board" and to "Xxxx X. Xxxxxx" is clause (z) thereof.
4. Section 9C. of the Agreement is amended by adding after the clause
"or because Employee resigns from Employee's employment" the following
language: "to the extent permitted in Section 9A."
5. The heading to Section 9E. of the Agreement is amended by deleting
the words "or Expiration", and the language of Section 9E. is amended in all
respects as necessary to delete any references to the payment of any amounts
to Employee upon the expiration of the Employment Term pursuant to the terms of
Section 2 of the Agreement.
6. The first sentence of Section 9F of the Agreement is amended by
deleting clause (iii) in its entirety and is amended in all respects as
necessary to delete any references to the payment of any amounts to Employee
if Employer (or its successor) delivers to Employee a written notice of
termination pursuant to Section 2 of the Agreement.
7. Clause (i) of Section 11 of the Agreement is amended by replacing the
words "for a period of 24 months after the date Employee ceases for any reason
to be employed by "Employer" with "for two (2) years after the later of (x)
the last day of the Initial Employment Term (if Employee ceases for any reason
to be employed by Employer before the expiration of the Initial Employment
Term) and (y) the date on which Employee ceases for any reason to be employed
by Employer". Clause (ii) of Section 11 of the Agreement is amended by
replacing the words "competitive with the business of Employer" with the words
"competitive with the business in which Employer is engaged or involved during
the period that Employee is employed by Employer and, in the case of Severance
Period, in which Employer is engaged or involved as of the date Employee ceases
for any reason to be employed by Employer". The definition of "Severance
Period" in Section 11 of the Agreement is amended and restated in its entirety
as follows: "For purposes of this Section 11, the 'Severance Period' shall mean
two (2) years after the later of (x) the last day of the Initial Employment
Term (if Employee ceases for any reason to be employed by Employer before the
expiration of the Initial Employment Term) and (y) the date on which Employee
ceases for any reason to be employed by Employer."
8. Section 13.D. of the Agreement is amended and restated in its entirety
as follows:
"For purposes of Section 10, 11, 12 and 13 of this Employment
Agreement, the term 'Employer' includes the Employer and all
wholly-owned subsidiaries of Employer."
9. Section 14 of the Agreement is deleted in its entirety, and Exhibit
"A" is deleted is its entirety.
10. Section 18 of the Agreement is amended to delete the reference to
the Registration Rights Agreement.
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11. Except as otherwise specifically modified by this Amendment, all
terms, conditions and provisions of the Agreement shall remain effective and
shall continue to operate in full force throughout the entire term of the
Agreement, as amended hereby.
12. This Amendment shall be governed by and construed pursuant to the
laws of the State of Florida. Any and all disputes between the parties which
may arise pursuant to the Agreement, as amended by this Amendment, will be heard
and determined before an appropriate federal court in Florida, or, if not
maintainable therein, then in an appropriate Florida state court.
13. This Amendment may be executed in counterparts, each of which shall
be an original, but both of which together shall constitute one and the same
instrument.
14. If the Merger Agreement is terminated before the Effective Time, this
Amendment shall be null and void and of no force or effect.
The parties hereto have cause this Agreement to be duly executed as of the
day and year first above written.
PRECISION RESPONSE CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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