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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated and effective as of April 1, 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 continue to employ Employee upon the
terms and conditions set forth below and Employee desires to continue such
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 as of the date
hereof and shall continue until 5:00, p.m., March 31, 2002 (the "Initial
Employment Term"), with the Initial Employment Term to be automatically renewed
and extended for consecutive additional one year periods unless, at least sixty
(60) 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 Employment 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 continue employment with Employer as contemplated herein and, except as
set forth in this Section 3, has no other written or oral obligations or
commitments of any kind or nature which would in any way interfere with
Employee's continuation 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. Notwithstanding anything herein to the contrary, the
parties recognize, acknowledge and agree that (i) Employee is also currently
employed by a professional services corporation ("RDMPA") which is associated
with the law firm of Bilzin Xxxxxxx Xxxx Price & Xxxxxxx LLP (the "Law Firm")
in the capacity of "Of Counsel;" (ii) that Employee expects such association
(directly or indirectly through RDMPA) with the Law Firm to continue through
the end of the Employment Term; and (iii) that Employee may periodically devote
during the Employment Term certain nonmaterial amounts of time and effort to
support client relationships of the Law Firm with clients whom Employee is
familiar, but that in no event will such efforts in any way take precedence
over or in any way interfere with Employee's duties and responsibilities to
Employer assigned to him pursuant to this Employment Agreement.
4. DUTIES AND EXTENT OF SERVICES
A. Duties. Employee's duties and responsibilities
hereunder shall be those reasonably assigned to him from time to time by
Employer, consistent with the following: (i) Employee shall be an Executive
Vice President of Employer, and serve as a member of uppermost senior
management of Employer; (ii) Employer shall serve as General Counsel and
Secretary of Employer and be responsible to perform the duties usually and
customarily required of a senior executive who holds such positions; (iii)
Employee shall consult with and advise Employer's Board of Directors and senior
management with respect to all aspects of public or private offerings of debt
or equity and all financing matters generally and direct and supervise
Employer's team with respect thereto; (iv) Employee shall direct and supervise
any acquisitions or dispositions of capitol stock, businesses, assets and
facilities approved by the Board of Directors of Employer; (v) Employee shall
supervise and direct Employer's relationships with outside law firms; and (vi)
Employee shall generally consult with the Board of Directors and senior
management of Employer with respect to strategic business decisions of all
kinds and any other matters consistent with or related to any of the foregoing.
Employee shall
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report directly to Employer's Chairman of the Board, Chief Executive Officer
and Board of Directors as from time to time requested by any of the foregoing.
Subject to the provisions of Section 3, Employee shall devote substantially all
of his work efforts to perform the duties and responsibilities properly
assigned to Employee hereunder or pursuant hereto to the best of his abilities.
However, Employee may devote a reasonable amount of his time to civic,
community or charitable activities and, with the prior approval of the Chairman
of the Board or Chief Executive Officer of Employer, to serve as a director of
other corporations or in a similar capacity with other types of entities and as
a member of committees of boards of directors of such other corporations or
comparable governing bodies of such other entities and undertake other
activities not expressly mentioned in this paragraph. Employee may invest his
personal assets as he deems appropriate so long as such investments do not
interfere with Employee's performance of the duties and responsibilities
properly assigned to him pursuant to this Employment Agreement.
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 senior executives generally, provided
that copies of such rules and regulations are provided to Employee. Such rules
and regulations are all hereby incorporated by reference and made a part of
this Employment Agreement.
C. Place of Service. Employee shall render his services
initially in northern Miami-Dade County, Florida, and shall not be obligated to
maintain his office in any place other than northern Miami-Dade County (i.e.,
not any further south in Miami-Dade County than the location of Employer's
executive offices as of the date of this Employment Agreement), Broward County
or Palm Beach County, Florida; provided, however, that Employee shall be
obligated to travel as necessary to fulfill his duties and responsibilities.
5. COMPENSATION
A. Base Compensation. Subject to the provisions of
Section 9 of this Employment Agreement, Employer shall pay salary to Employee
("Salary") at a rate of $400,000 per annum through the expiration of the
Employment Term unless otherwise mutually agreed in writing by the parties
hereto. 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
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withholdings in accordance with Employer's usual practices and as required by
law.
B. Bonus Compensation. Employee shall receive an annual
bonus in an amount to be determined by the Compensation Committee of the Board
of Directors of Employer in its sole and absolute discretion (the "Bonus
Amount"). Subject to the provisions regarding payment upon termination or
expiration of employment set forth in Section 9 hereof, each annual Bonus
Amount shall be paid on or before March 31 of each year of the Employment Term.
The Bonus Amount payable on or before each March 31 shall be based upon the
operating results of Employer and Employee's performance during the calendar
year (or the portion thereof in which Employee was employed hereunder)
immediately preceding such March 31. 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.
C. Stock Option Plans. On or before December 31 of each
year (beginning December 31, 1999) during the Employment Term (or, with respect
to the final year of this Employment Agreement, upon the effective date of
termination of Employee's employment if such effective date is a date other
than December 31) (each, an "Option Grant Date"), Employer through the
Compensation Committee of Employer shall cause to be granted to Employee
options to purchase that number of shares of Employer's voting common stock
which is at least equal to five percent (5%) of the aggregate number of shares
for which options for Employer's common stock were granted since the last
Option Grant Date (or, with respect to the first Option Grant Date, since
January 1, 1999) to Employer's employees and to Employer's non-employee
directors under any stock option plans (including incentive stock option plans)
of Employer, but excluding, in calculating the aggregate number of shares for
which options were granted, any stock options awarded to Xxxx Xxxxxx, Xxxxx
Xxxxxxx and/or Xxxxxxx X. Xxxxx, Xx. pursuant to a provision in their
respective employment agreements with Employer substantially the same as this
Subsection C. The terms (including price and vesting and/or exercise dates) of
the options granted to Employee shall be as determined by the Committee but
shall be comparable to the terms upon which options were generally granted to
other employees of Employer during the applicable period, subject to any
differences required under applicable tax laws with respect to incentive stock
options granted to Employee. In all events, the options granted to Employee
shall provide that Employee shall have at least ninety (90) days following
termination of Employee's employment for any reason other than death and that
Employee's personal representative or other legal representative shall have at
least one (1) year following Employee's death to
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exercise any or all of the outstanding options granted to Employee to the
extent they were exercisable on the date of such termination of employment or,
if Employee's employment is terminated for reasons other than (i) Employee's
death, Disability (as defined in Section 9.B.) or voluntary resignation (but
not Constructive Termination, as defined in Section 9.B.) or (ii) for Cause (as
defined in Section 9.B.), to exercise any or all of such outstanding options
(which shall all then be deemed exercisable and fully vested, notwithstanding
any stated vesting schedules) in full. Furthermore and notwithstanding anything
to the contrary contained herein, all of the outstanding options of Employee
shall be fully vested and immediately exercisable (a) no later than the date of
the expiration of the Initial Employment Term or (b) upon a Change in Control
(as defined in Section 9.F.).
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 and qualified and unqualified pension, profit
sharing and deferred compensation plans) as are made available by Employer from
time to time, in Employer's sole discretion, to Employer's senior executives
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.
C. Automobile. Employer shall provide to Employee an
automobile allowance of $850.00 per month during the Employment Term in order
to defray Employee's automobile expenses incurred in the performance of his
duties, but shall not be obligated to provide Employee with an automobile.
D. Directors' and Officers' Liability Insurance. Employer
will endeavor to maintain Employer's directors' and officers' liability
insurance at least at the same level of coverage as in effect as of the date
hereof.
7. VACATIONS Employee shall be entitled to six weeks
vacation each full year of the Employment Term (prorated for any partial year),
with full compensation, which, to the extent unused, may be carried over from
year to year (provided, however, that
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Employee shall not be entitled to be compensated for any unused vacation days
upon termination of employment). The periods during which Employee will be
absent from work for vacation shall be at the reasonable discretion of
Employer.
8. FACILITIES
Employer shall provide and maintain (or cause to be provided
and maintained) such facilities, equipment, supplies and personnel as are
reasonably 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 hereinafter defined) and receiving written notice of termination from
Employer to that effect within ninety (90) days after being deemed Disabled.
Employee may terminate Employee's employment under this Employment Agreement
without being in breach hereunder by giving written notification of (i)
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 or (ii) Constructive Termination (as hereinafter defined) of
Employee's employment under this Employment Agreement (subject to the
provisions of Section 9.B. hereof relating to Constructive Termination).
Employee's employment under this Employment Agreement shall be terminated upon
expiration of the Employment Term pursuant to Section 2 hereof.
B. Definitions of Cause, Disabled and Constructive
Termination. For purposes of this Employment Agreement, "Cause" shall mean: (i)
commission of a felony, or commission of acts of fraud, embezzlement or the
like on or with respect to Employer; (ii) habitual drunkenness during business
hours or at Employer's premises; (iii) use of illicit drugs during business
hours or at Employer's premises; (iv) abandonment of employment duties (other
than by reason of death or becoming Disabled); or (v) material breach by
Employee of this Employment Agreement having a material adverse effect on
Employer or its businesses, operations or financial condition, which breach, if
curable, is not cured by Employee within thirty (30) days following Employee's
receipt of written notice thereof (such notice shall specify in reasonable
detail the nature of the material breach and the curative steps, if
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curable, required to be taken). Employee shall be deemed "Disabled" for
purposes of this Employment Agreement (a) if 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 one hundred and twenty (120) days, or (b) if Employee is adjudicated as an
incompetent or has a guardian appointed to handle Employee's affairs. If clause
(a) above applies, Employee shall be deemed Disabled on the last day of the 120
day period. If clause (b) above applies, Employee shall be deemed Disabled on
the date of adjudication as an incompetent or the appointment of the guardian,
whichever occurs first. For purposes of this Employment Agreement,
"Constructive Termination" shall mean: (x) Employer has delegated to another or
others a material portion of Employee's duties or responsibilities provided for
in Section 4.A. hereof (and shall include, without limitation, removal of
Employee from the office of Executive Vice President, General Counsel or
Secretary, even if Employee's day-to-day duties are to remain substantially the
same), other than for Cause, and Employer fails to confirm in writing, and
implement, the reinstatement of such material portion of Employee's duties and
responsibilities and/or offices to Employee within thirty (30) days after
receipt by each of the Chairman of the Board and Chief Executive Officer of
Employer of Employee's written notice of protest (as provided in the next
sentence), (y) Employer attempts, without Employee's prior written consent, to
relocate Employee's office outside the location specified in Section 4.C.
hereof, or (z) the position of Chairman of the Board or Chief Executive Officer
of Employer becomes vacant for any reason and either (1) the vacancy is filled
by a person other than Xxxx X. Xxxxxx, Xxxxx Xxxxxxx, Employee or another
person not an employee of Employer immediately prior to becoming the Chairman
of the Board or Chief Executive Officer of Employer or (2) the vacancy is not
filled within sixty (60) days of the date of such vacancy. In the event of
Constructive Termination of Employee's employment under this Employment
Agreement, Employee may terminate Employee's employment, provided that he has
given written notice of protest to each of the Chairman of the Board and Chief
Executive Officer of Employer within thirty (30) days of the occurrence of the
event causing the Constructive Termination setting forth the manner in which
the Constructive Termination has occurred (and such Constructive Termination is
not timely corrected, as provided in the case of a Constructive Termination
under clause (x) of the preceding sentence).
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 Employee's employment, Employer shall
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pay to Employee, within thirty (30) days following the date of such termination
or resignation, (i) the Salary, if any, accrued and unpaid through the date of
such termination or resignation, and (ii) if the Bonus Amount of Employee for
the prior year has been declared by Employer, but not yet paid to Employee, the
Bonus Amount for such prior year, 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 or resignation; 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.
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 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 (except with respect to benefits which become payable
under any employee benefit plans of Employer as a result of Employee's death or
disability). In the event that death or termination of employment as a result
of Employee becoming Disabled occurs during a year and prior to any Bonus
Amount of Employee being declared by Employer for such year, the Bonus Amount
under this Subsection D. for such partial year of employment shall be prorated
through the date of such death or termination based upon the prior year's Bonus
Amount.
E. Compensation Upon Termination Without Cause or
Constructive Termination or Expiration. In the event that Employer (or its
successor) terminates Employee's employment under this Employment Agreement
without Cause (other than in connection with or in contemplation of a Change in
Control (as hereinafter defined) as provided in Subsection F. below), Employee
terminates his employment as a result of the occurrence of a Constructive
Termination to the extent and in the manner permitted hereunder or upon
expiration of the Employment Term pursuant to the terms of Section 2,
Employee's sole and exclusive compensation and remedy
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hereunder shall be to receive from Employer, and Employer shall pay to
Employee, (i) the amount of Salary and Bonus Amount, if any, accrued and unpaid
through the date of termination or expiration, and the amounts and items
payable or to be provided under Section 6 through the date of termination or
expiration, payable within thirty (30) days following the date of termination
or expiration of employment, and (ii) (A) in the case of termination without
Cause or Constructive Termination, an amount in cash equal to the sum of (1)
the Salary that Employee would have received during the greater of (x) the one
year period following the date of such termination of Employee's employment and
(y) the remainder of the Initial Employment Term (if such termination occurs
during the Initial Employment Term) and (2) $200,000 or (B) in the case of
expiration of the Employment Term pursuant to Section 2 hereof as a result of
Employer delivering to Employee a written notice of termination of this
Employment Agreement, an amount in cash equal to the Salary for one (1) full
year. Such cash amount payable under clauses (A) or (B) above shall be payable
one-half (1/2) within thirty (30) days following the date of termination of
employment or expiration and the balance (the other one-half (1/2)) payable in
equal consecutive monthly installments over the period that Employee was
entitled to be paid the Salary under clauses (A) or (B) above (as the case may
be), with the first such installment payable sixty (60) days following the date
of termination of employment or expiration and each subsequent installment
payable on the same day of each successive month until payment is made in full.
In the event that termination of employment without Cause, as a result of
Constructive Termination or upon expiration of this Employment Agreement occurs
during a year and prior to any Bonus Amount of Employee being declared by
Employer for such year, the Bonus Amount under this Subsection E. for such
partial year of employment shall be prorated through the date of such
termination based upon the prior year's Bonus Amount. Notwithstanding anything
to the contrary contained in this Subsection E., if termination of employment
without Cause, as a result of Constructive Termination or upon expiration of
this Employment Agreement occurs before a Change in Control and this Subsection
E. is followed by the parties, but within one hundred eighty (180) days
thereafter with respect to termination of employment without Cause or as a
result of Constructive Termination or within one hundred twenty (120) days
thereafter with respect to expiration of this Employment Agreement a Change in
Control occurs, then Subsection F. shall supersede this Subsection E. and the
balance of the unpaid amounts of the severance and other payments required
under Subsection F. shall be immediately (but in all events within thirty (30)
days after such Change in Control) paid by Employer (or its successor) to
Employee.
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F. Compensation Upon a Change in Control. Notwithstanding
the provisions of Subsection E. above, in the event that (i) Employer (or its
successor) terminates Employee's employment under this Employment Agreement
without Cause within one hundred eighty (180) days before or after a Change in
Control (as hereinafter defined), (ii) Employee terminates his employment to
the extent and in the manner permitted under this Employment Agreement as a
result of the occurrence of a Constructive Termination within one hundred
eighty (180) days before or after a Change in Control or (iii) Employer (or its
successor)(but not Employee) delivers to Employee a written notice of
termination pursuant to Section 2 terminating this Employment Agreement at the
expiration of the Employment Term and such expiration occurs within one hundred
and twenty (120) days before or one hundred eighty (180) days after a Change in
Control, Employee's sole and exclusive compensation and remedy hereunder shall
be to receive from Employer (or its successor), and Employer (or its successor)
shall pay to Employee within thirty (30) days following the date of termination
of employment or expiration, (a) the amount of Salary and Bonus Amount, if any,
accrued and unpaid through the date of termination of employment or expiration,
and the amounts and items payable or to be provided under Section 6 through the
date of termination of employment or expiration, and (b) a lump sum severance
payment in cash equal to 2.99 times an amount equal to the average of the sum
of the annual Salary and Bonus Amount paid to Employee each year during the
Employment Term. For purposes of this Subsection F., (1) a "Change in Control"
means that (x) 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); (y) 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
of Employer (or its successor) beneficially owning the highest number of issued
and outstanding shares of common stock of Employer (or its successor); or (z)
Xxxx Xxxxxx and/or Xxxxx Xxxxxxx do not occupy the positions of Chairman of the
Board and Chief Executive Officer of Employer (or its successor); (2)
"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 or other
entities
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principally for the benefit of him, his family members and/or lineal
descendants; and (3) "Immediate family members" mean, with respect to Xxxx
Xxxxxx or Xxxxx Xxxxxxx, his spouse, children, parents, siblings or other
lineal descendants. For purposes of clause (a) of this Subsection F., any Bonus
Amount for a partial year of employment shall be prorated through the date of
such termination or expiration(based upon the prior year's Bonus Amount, if
any) and for purposes of clause (a) or clause (b) of this Subsection F., if
Employee has not previously earned a Bonus Amount under this Employment
Agreement, the Bonus Amount shall be deemed to be $300,000. Nothing in this
Subsection F. shall be deemed to limit Employee's rights as provided under
Subsection E. with respect to a termination without Cause or Constructive
Termination occurring more than 180 days before or more than 180 days after a
Change in Control or an expiration of this Employment Agreement occurring more
than 120 days before or more than 180 days after a Change in Control.
G. Key-Man Insurance. In the event that Employer has
obtained or obtains a key-man insurance policy (the "Policy") on the life of
Employee, Employer shall be the sole owner thereof and all proceeds payable in
respect thereof shall be the property solely of Employer. In the event that
Employee's employment terminates for any reason other than Employee's death,
Employee may request that the Policy be assigned to Employee by giving written
notice to Employer to that effect. Subject to obtaining any requisite consent
from the insurer, Employer shall, if Employee has so requested, assign the
Policy to Employee subject to Employee's reimbursement to Employer of any
premiums paid by Employer which relate to any period following the date of
termination of Employee's employment, and the cash value, if any, of the
Policy. In the event that Employer desires to obtain any such Policy, Employee
shall fully cooperate in Employer's efforts, including submitting to medical
examinations and tests and executing and delivering applications and
information statements.
10. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
A. Confidential Information. Employee acknowledges that
Employee has been informed by Employer of Employer's policy to maintain as
secret and confidential all information and materials relating to (i) the
financial condition, operations, business and interests of Employer, (ii) the
systems, know-how, records, products, services, cost information, inventions,
computer 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
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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 or
Chief Executive Officer of Employer for the benefit of Employer and/or as
required in the course of employment) at any time hereafter divulge or disclose
for any purpose to any persons, firms, corporations or other entities
(hereinafter referred to collectively as "Third Parties"), or use or cause or
authorize any Third Parties to use, any such Confidential Information, except
as otherwise required by law.
B. Employer's Materials. In accordance with the
foregoing, Employee furthermore agrees that (i) Employee will at no time retain
or remove from the premises of Employer any products, prototypes, drawings,
notebooks, computer or Internet software or discs, tapes or similar containers
of software, manuals, data, books, records, materials or documents of any kind
or description of Employer or related to its business for any purpose
unconnected with the 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 to be obtained by
or disclosed to Employee, and (b) the consideration payable to Employee under
this Employment Agreement, and as a material inducement to Employer to enter
into this Employment Agreement, Employee covenants and agrees that, (i) for as
long as Employee is employed by Employer and for a period of 24 months after
the date Employee ceases for any reason to be employed by Employer, Employee
shall not, directly or indirectly, (A) sell any products or services sold or
offered by Employer to any person or
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entity who is or was a client of 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) 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, and (ii) for as long as Employee is employed by Employer and
thereafter for the Severance Period (as hereinafter defined), 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; provided, however, that
nothing in this Section 11 shall prohibit Employee from (w) owning as a passive
investor beneficially and/or of record less than 5% of the outstanding equity
securities of any entity whose equity securities are registered under the
Securities Exchange Act of 1934, as amended, or are listed for trading on any
United States or foreign stock exchange or (x) engaging, after termination of
Employee's employment with Employer, in the practice of law in any capacity
whatsoever (including, without limitation, as a partner, of counsel or
otherwise) with a law firm that represents a client which is a competitor of
Employer so long as Employee does not directly perform services for such
client. 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. For purposes of this Section
11, the "Severance Period" shall mean: (y) in the case of a termination of
Employee's employment as a result of Employee becoming Disabled or a
termination of Employee's employment with Cause or as a result of the
resignation of employment by Employee or in the case of the expiration of the
Employment Term resulting from the election of Employee or Employer not to
renew, a period of 12 months after the termination date of Employee's
employment with Employer; and (z) in the case of termination of Employee's
employment without Cause or as a result of the occurrence of a Constructive
Termination, the greater of (1) a period of 12 months after the termination
date of Employee's employment with Employer or (2) the remainder of the Initial
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Employment Term (if such termination occurs during the Initial Employment
Term).
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. 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
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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 subsidiaries of
Employer and its parent corporation (if any).
14. REGISTRATION RIGHTS. If Employee's employment with Employer
shall terminate for any reason (whether under this Employment Agreement or
otherwise), Employee may thereafter require Employer to register any or all of
the unregistered shares of common stock that Employee (or his assigns or
affiliated entities or trusts) may then own as of the date of such termination
of employment in accordance with the provisions of the Registration Rights
Agreement attached hereto as Exhibit "A". In addition, Employee shall have the
piggyback registration rights and other rights as set forth in such
Registration Rights Agreement.
15. LAW APPLICABLE
This Employment Agreement shall be governed by and construed
pursuant to the laws of the State of Florida.
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16. 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 Chief Executive Officer, if mailed to Employer, and to Employee's then
current residence, if mailed to Employee, and shall be effective only upon
actual receipt by the party to whom it is given.
17. SUCCESSION
This Employment Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective legal representatives,
heirs, assignees and/or successors in interest of any kind whatever; provided,
however, that Employee acknowledges and agrees that Employee cannot assign or
delegate any of Employee's rights, duties, responsibilities or obligations
hereunder to any other person or entity. Employer shall have the right to
assign its rights and delegate its duties under this Employment Agreement,
provided that, in the event of any such assignment other than in connection
with a merger, consolidation or similar reorganization or the sale of all or
substantially all of the assets of Employer (or its successor), Employer shall
remain liable for all of its obligations hereunder.
18. ENTIRE AGREEMENT
This Employment Agreement, together with the Registration
Rights Agreement attached hereto as Exhibit "A", constitute 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
(including, without limitations, that certain employment agreement dated as of
February 16, 1996 between the parties) concerning, the subject matter hereof
and may not be amended, modified or terminated except by a writing signed by
the parties hereto.
19. 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.
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20. 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.
21. 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.
22. 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.
23. INDEPENDENT COUNSEL
THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THEM HAS HAD THE
OPPORTUNITY TO RETAIN AND TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL WITH
RESPECT TO, AND IN CONNECTION WITH ALL STAGES OF THE NEGOTIATION, PREPARATION
AND EXECUTION OF, THIS EMPLOYMENT AGREEMENT.
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
-------------------------------------------
Xxxxx X. Xxxxxxx
Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
XXXXXXX X. XXXXXX
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EXHIBIT "A"
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is entered into effective as of the
1st day of April, 1999, by and between PRECISION RESPONSE CORPORATION, a
Florida corporation (the "Company"), and XXXXXXX X. XXXXXX ("Holder").
WHEREAS, the Company and Holder have entered into an Employment
Agreement as of the date hereof (the "Employment Agreement") and, as partial
consideration therefor, the Company has agreed to provide Holder certain demand
and piggyback registration rights with respect to Holder's stock in Company,
which may be exercised by Holder following certain events.
THE PARTIES AGREE AS FOLLOWS:
ARTICLE I
REGISTRATION RIGHTS
Section 1.01 Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
(a) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(b) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(c) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(d) "Shares" shall mean any and all of the shares of common
stock of the Company currently held or hereafter acquired from time to time
(including, but not limited to, through exercise of stock options) by Holder or
any assigns or transferees of Holder which are Holder's family members and/or
lineal descendants and/or which are trusts, limited partnerships or other
entities the direct or indirect beneficial or pecuniary owners of which are
principally Holder, Holder's family members and/or Holder's lineal descendants,
including, without limitation, shares of common stock acquired by
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any such trusts, partnerships or other entities from Holder or any such trust,
limited partnership or other entity prior to the date hereof.
(e) "Registrable Securities" shall mean any of the following
shares which have not been sold to the public or which have not lost their
registration rights as provided herein: (i) the Shares and (ii) any shares of
common stock of the Company, and any securities of the Company or any other
corporation, issued as a dividend or other distribution with respect to or in
replacement of or exchange for the Shares.
(f) The terms "register," "registered" and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
(g) "Registration Expenses" shall mean all expenses incurred by
the Company in complying with Article I hereof, including, without limitation,
all registration, qualification and filing fees, printing expenses, escrow
fees, fees and disbursements of counsel and accountants for the Company, blue
sky fees and expenses and the expense of any special audits incident to or
required by any such registration, but excluding the compensation of regular
employees of the Company which shall be paid in any event by the Company, but
excluding the Selling Expenses.
(h) "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale of the Registrable Securities
and all fees and expenses of legal counsel for Holder.
(i) "Triggering Event" shall mean the termination of Holder's
employment with Company for any reason (under the Employment Agreement or
otherwise).
(j) "Holder" shall mean Xxxxxxx X. Xxxxxx or, in the event of
his legal incapacity, his legal guardian, or, in the event of his death, the
personal representative(s) of his estate or the beneficiary(ies) of his estate
as designated by such personal representative(s).
Section 1.02 Demand Registration Rights.
(a) Request for Registration. If within ninety (90) days after
the date of the Triggering Event (or within one (1) year after the date of the
Triggering Event if the Triggering Event is
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Holder's death) the Company receives a written request from Holder that the
Company effect a registration with respect to all or a part of the Registrable
Securities (provided that if less than 25% of the Registrable Securities are to
be registered such securities shall have an aggregate proposed offering price
to the public of at least $500,000), the Company will as soon as practicable
thereafter use its diligent best efforts to effect all such registrations,
qualifications, listings or compliances (including, without limitation, the
execution of an undertaking to file post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities laws and
appropriate compliances with applicable requirements or regulations and listing
of the Registrable Securities on a stock exchange or The Nasdaq Stock Market)
as may be so requested and as would permit or facilitate the sale and
distribution of all of such Registrable Securities as are specified in such
request. The Company shall file a registration statement as soon as practicable
after receipt of the request of Holder but in any event within sixty (60) days
of receipt following such request; provided, however, that, if the Company
shall furnish to Holder a certificate signed by the then Chairman of the Board
of Directors of the Company or the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company it would be seriously detrimental to the Company and its shareholders
for such registration statement to be filed on or before the date filing would
be required, and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period ending not more than one hundred twenty (120) days following
receipt of the request for registration.
(b) Underwriting. If the Holder intends that the Registrable
Securities covered by its request be distributed by means of an underwriting,
it shall so advise the Company as a part of its request made pursuant to this
Section 1.02. In such event, the Company shall (together with Holder) enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by Holder. If the underwriter has
not limited the number of Registrable Securities to be underwritten, the
Company may include securities for its own account in such registration if
Holder so agrees.
Section 1.03 Piggyback Registration Rights.
(a) Notice of Proposed Registration. If at any time or from
time to time prior to, on or after a Triggering Event the Company shall
determine to register any of its common stock, other than (i) a registration
relating solely to employee benefit plans
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on Form S-8 or similar forms which may be promulgated in the future, or (ii) a
registration on Form S-4 or similar forms which may be promulgated in the
future relating solely to a Commission Rule 145 transaction, the Company will:
(i) promptly give Holder written notice thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws and other
state compliances), and in any underwriting
involved therein, all the Registrable Securities
specified in a written request or requests made
within thirty (30) days after receipt of such
written notice from the Company by Holder,
except as set forth in Section 1.03(b).
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise Holder as a part of the written notice given pursuant
to Section 1.03(a)(i). In such event, the right of Holder to registration of
the Registrable Securities pursuant to this Section 1.03 shall be conditioned
upon Holder's participation in such underwriting and the inclusion of the
specified Registrable Securities in the underwriting. Holder shall in such case
(together with the Company) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by the
Company. Notwithstanding any other provision of this Section 1.03, if the
underwriter determines that marketing factors require a limitation of the
number of shares to be underwritten, the underwriter may limit the amount of
Registrable Securities to be included in the registration and underwriting;
provided, however, without the prior written consent of Holder, the number of
Registrable Securities to be included in such registration and underwriting
shall not be reduced to less than 50% of the Registrable Securities sought by
Holder to be included therein. If Holder disapproves of the terms of any such
underwriting, it may elect to withdraw the Registrable Securities therefrom by
written notice to the Company and the underwriter. Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded from such
registration.
Section 1.04 Expenses of Registration. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to Sections 1.02 or 1.03 shall be borne by the Company. All Selling
Expenses shall be borne by Holder.
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Section 1.05 Registration Procedures. In the case of each
registration, qualification or compliance effected by the Company pursuant to
this Agreement, the Company will, upon request, inform Holder as to the status
of each such registration, qualification and compliance. At its expense the
Company will:
(a) keep such registration, and any qualification or compliance
under state securities laws which the Company determines (or is required) to
obtain, effective for a period of one hundred eighty (180) days after the
effective date thereof or until the distribution of the Registrable Securities
described in the registration statement relating thereto has been completed,
whichever first occurs; and
(b) furnish such number of prospectuses and other documents
incident thereto as Holder or any underwriter from time to time may reasonably
request.
Section 1.06 Indemnification.
(a) The Company will indemnify Holder and each owner of
Registrable Securities, and their respective legal counsel and accountants, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration statement,
prospectus, offering circular or other document, or any amendment or supplement
thereof, incident to any registration, qualification or compliance contemplated
by this Agreement (whether or not Registrable Securities are included in the
registration), or based on any omission (or alleged omission) to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse Holder and each
owner of Registrable Securities, and their respective legal counsel and
accountants, and each such underwriter and each person who controls any such
underwriter, for any legal and other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such claim, loss, damage,
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liability or expense arises out of or is based on any untrue statement (or
omission) made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by or on behalf of
Holder or another owner of Registrable Securities and stated to be specifically
for use therein.
(b) Holder will, if Registrable Securities are included in the
securities as to which such registration, qualification or compliance is being
effected, indemnify the Company, and each of its directors, officers, legal
counsel and accountants, each underwriter, if any, of the Company's securities
covered by such a registration statement, and each person who controls the
Company or such underwriter within the meaning of Section 15 of the Securities
Act, against all expenses, claims, losses, damages and liabilities (or actions
in respect thereof), including any of the foregoing incurred in settlement of
any litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
such registration statement, prospectus, offering circular or other document,
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and such directors, officers, legal
counsel, accountants, persons, underwriters or control persons for any legal
and other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement (or omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by an instrument duly executed by or on behalf of Holder and
stated to be specifically for use therein. Notwithstanding any of the foregoing
to the contrary, Holder's maximum indemnity obligation, inclusive of
reimbursement of costs, fees, and expenses, shall be the total net proceeds
received by Holder and such other owners of Registrable Securities to which
Holder's demand or request for registration relates from the sale of such
Registrable Securities pursuant to the registration demanded or requested.
(c) A party entitled to indemnification under this Section 1.06
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of each such
claim and any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
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litigation, shall be approved by the Indemnified Party (whose approval shall
not be unreasonably withheld), and the Indemnified Party may participate in
such defense at such party's expense, and provided further that the failure of
any Indemnified Party to provide notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Agreement except to the
extent such failure is prejudicial to the Indemnifying Party in defending such
claim or litigation. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the execution and delivery by the claimant or
plaintiff to such Indemnified Party of a release from all liability with
respect to such claim or litigation.
(d) If the indemnification provided for in this Section 1.06 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party thereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, taking into account relevant equitable
considerations. The relative fault of the Indemnifying Party and the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall be controlling.
Section 1.07 Lockup Agreement. In consideration for the Company
agreeing to its obligations under this Article I, Holder agrees in connection
with any firmly underwritten public offering of the Company's common stock,
upon request of the Company or the underwriters managing such offering, not to
sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise
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dispose of any of Holder's Registrable Securities (other than those included in
the registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed 30
days) from the effective date of such registration as the Company or the
underwriters may specify; provided, however, that Holder shall have no
obligation to enter into the agreement described herein unless all executive
officers and directors of the Company and all other holders of more than 5% of
the Company's outstanding common stock enter into similar agreements.
Section 1.08 Information by Holder. Holder shall furnish or cause
to be furnished to the Company such information regarding Holder and other
owners of Registrable Securities and the distribution of proceeds by Holder and
such owners as the Company may reasonably request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in Section 1.02 or 1.03 of this Agreement.
Section 1.09 Rule 144 Reporting. With a view to making available
the benefits of certain rules and regulations of the Commission which at any
time permit the sale of the Registrable Securities to the public without
registration, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) so long as any Registrable Securities are owned or held,
furnish to Holder forthwith upon request a written statement by the Company as
to its compliance with the reporting requirements of said Rule 144 and of the
Securities Act and Exchange Act, a copy of the most recent annual or quarterly
report of the Company and such other reports and documents of the Company as
Holder may reasonably request in availing Holder or other owners of Registrable
Securities of any rule or regulation of the Commission (including, without
limitation, Rule 144) allowing the sale of any such securities without
registration.
Section 1.10 Transfer of Registration Rights. The rights to cause
the Company to register the Registrable Securities granted to Holder by the
Company under Sections 1.02 and 1.03 may be assigned by Holder to not more than
five additional transferees or assignees
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of any of Holder's Registrable Securities, provided that the Company is given
written notice by Holder at the time of, or within a reasonable time after,
said transfer, stating the name and address of said transferee or assignee and
identifying the securities with respect to which such registration rights are
being assigned, provided further that no such assignment shall increase the
number of registrations that the Company may be required to effect under this
Agreement.
ARTICLE II
MISCELLANEOUS
Section 2.01 Amendment. Any modification, amendment or waiver of
this Agreement or any provision hereof shall be effective only if in writing
and executed by Holder and the Company.
Section 2.02 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Florida without regard to its conflicts of
laws principles.
Section 2.03 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
Section 2.04 Notices. For purposes of this Agreement, notices and
other communications provided for in this Agreement shall be deemed to be
properly given if delivered personally or by commercial courier service or sent
by United States certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Holder: Xxxxxxx X. Xxxxxx
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
If to Company: Precision Response Corporation
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Chairman of the Board and Chief
Executive Officer,
or to such other address as either party may have furnished to the other party
in writing in accordance with this paragraph. Such notices or other
communications shall be effective only upon receipt. Notices also may be given
by facsimile and in such case shall be deemed to be properly given when sent so
long as the
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sender uses reasonable efforts to confirm and does confirm the receiver's
receipt of the facsimile transmission.
Section 2.05 Severability. If any provision of this Agreement shall
be judicially determined to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired thereby.
Section 2.06 Entire Agreement. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subject matter hereof.
Section 2.07 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.
Section 2.08 Attorneys' Fees. In the event that either of the
parties to this Agreement institutes suit against the other party to this
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.
Section 2.09 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
PRECISION RESPONSE CORPORATION
By:
--------------------------------------------
Xxxxx X. Xxxxxxx
Chief Executive Officer
-----------------------------------------------
XXXXXXX X. XXXXXX
10
