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EXHIBIT 10.1
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (this "Amendment") 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
("Company"), and Xxxxx X. Xxxxxxx ("Executive")
W I T N E S S E T H
WHEREAS, Company currently employs Executive pursuant to that certain
Employment Agreement dated May 15, 1996, by and between Company and Executive
(the "Agreement"); and
WHEREAS, Company and Executive desire to amend certain of the
provisions of the Employment Agreement as set forth herein.
NOW THEREFORE, the parties agree that the Agreement shall be amended
effective as of and after the date hereof as follows:
1. Paragraph 1 of the Agreement is amended and restated in its
entirety as follows:
"Company hereby employs Executive as its Chief Executive Officer
throughout the balance of the term of this Agreement and agrees to
cause Executive from time to time to be elected or appointed to such
corporate office. Executive accepts such employment. The duties and
responsibilities of Executive shall include duties and
responsibilities consistent with Executive's corporate office,
including, without limitation, those set forth in the bylaws of
Company from time to time, overall responsibility and authority for
the conduct of all operations and business of Company and the
employees of Company, and such other duties and responsibilities which
the Board of Directors of Company or Chairman of the Board from time
to time may reasonably assign to Executive consistent with the
foregoing. Unless otherwise determined by agreement of Executive and
the Board of Directors of Company, Executive shall also serve in the
same corporate office with Company's subsidiaries (and Company's
successor, in the event of any corporate reorganization) throughout
the term of this Agreement, and shall have the same duties and
responsibilities with respect to such subsidiaries (and such
successor) as he has with respect to Company, but without additional
compensation, and Company (for itself and on behalf of its successor)
agrees to cause Executive from time to time to be elected or appointed
to such corporate office.
2. Paragraph 2 of the Agreement is amended and restated in its
entirety as follows:
"Term. Subject to the provisions for earlier termination set forth in
Section 7 hereof, this Employment Agreement shall commence as of the
date hereof and shall continue until 5:00, p.m., March 31, 2002 (the
"Initial Term"), with the Initial 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 Term or any one
year renewal period thereof, either party hereto delivers to the other
party hereto written notice of such party's termination of this
Agreement at the expiration of the Initial Term or any one year
renewal period thereof (as
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the case may be). The Initial Term together with any or all one year
renewal periods thereof are hereinafter collectively referred to as
the "Employment Term"."
3. For purposes of paragraphs 4 and 7(e)(ii) of the Agreement,
the Miami-Ft. Lauderdale, Florida metropolitan area shall not extend further
south than the location of Company's executive offices as of the date of this
Amendment.
4. The second sentence of paragraph 5 of the Agreement is
amended and restated in its entirety as follows:
"The Base Salary shall be increased, effective on January 1st of each
year during Executive's employment (the "Adjustment Date") by an
amount at least equal to the percentage increase in the U.S.
Department of Labor Consumer Price Index (All Items) for all Xxxxx
Xxxxxxxxx, X.X. Xxxx Xxxxxxx, 0000-0000 - 100 (the "Index") since
December 31, 1998, or the previous Adjustment Date, whichever is
later."
5. Paragraph 6(a) of the Agreement is amended and restated in
its entirety as follows:
"Bonus. Executive shall receive an annual bonus in an amount to be
determined by the Compensation Committee of the Board of Directors of
Company in its sole and absolute discretion. Subject to the provisions
regarding payment upon termination or expiration of employment set
forth in Section 8 hereof, each annual bonus shall be paid on or
before March 31 of each year of the Employment Term. The bonus payable
on or before each March 31 shall be based upon the operating results
of Company and Executive's performance during the calendar year (or
the portion thereof in which Executive was employed hereunder)
immediately preceding such March 31. Each bonus shall be subject to
payroll deductions and tax withholdings in accordance with Company's
usual payroll practices and as required by law."
6. Paragraph 6(b) of the Agreement is amended by adding the
following additional sentence at the end thereof:
"Furthermore and notwithstanding anything to the contrary contained
herein, all of the outstanding options of Executive shall be fully vested and
immediately exercisable (a) no later than the date of the expiration of the
Initial Employment Term, (b) upon Executive terminating his employment as a
result of the occurrence of a Constructive Termination or (c) upon a change in
control (as such term has been generally defined with respect to grants of
options to senior executive officers of Company prior to April 1, 1999) ."
7. Paragraph 6(d) of the Agreement is amended and restated in
its entirety as follows:
"Vacations and Holidays. Executive 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
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extent unused, may be carried over from year to year (provided,
however, that Executive shall not be entitled to be compensated for
any unused vacation days upon termination of employment). The periods
during which Executive will be absent from work for vacation shall be
at the reasonable discretion of Company."
8. Paragraph 6 of the Agreement is amended by adding the
following new subparagraph (g) at the end thereof:
"(g) Directors' and Officers' Liability Insurance. Company will
endeavor to maintain Company's directors' and officers' liability
insurance at least at the same level of coverage as in effect as of
April 1, 1999."
9. Clause (i) of paragraph 7(c) of the Agreement is amended by
adding at the end of such clause (i) the following words: "on or with respect
to Company,"
10. The first sentence of paragraph 8(c) of the Agreement is
amended and restated in its entirety as follows:
"(c) Involuntary Termination. If Executive's employment shall be
terminated for any reason not set forth in subparagraphs 7(a) through
(d) above, or if a Constructive Termination occurs, prior to the end
of the term of this Agreement, or upon expiration of the Employment
Term pursuant to the terms of paragraph 2 hereof, then (without
limiting any other rights or claims which Executive may have against
Company or others) Executive shall be entitled to receive within
thirty (30) days after the date of termination or expiration a cash
amount equal to three (3) full years of Executive's Base Salary,
bonuses and other compensation and benefits provided for in this
Agreement, or, if more, the Base Salary, bonuses and other
compensation and benefits provided for in this Agreement from the date
of such termination through the end of the Initial Term."
11. Paragraph 12 is amended to provide that notice to the
Company shall be to the attention of each of the "Chairman and General Counsel"
rather than to the "CEO and General Counsel."
12. Schedule 6(e) to the Agreement is amended to provide,
immediately following the description of the Country Club Memberships, as
follows:
"SPLIT DOLLAR PLAN
Company shall commence funding a portion of the premiums
due on two life insurance policies issued on September 1, 1995, by New
York Life Insurance Company insuring, in one policy, the lives of
Executive and his wife, Xxxx X. Xxxxxxx and, in the other, the life of
Executive, pursuant to two separate written "Split Dollar" agreements
in the form executed by the two separate trusts administered for the
benefit of Xx. Xxxxxxx'x family, each of which is an owner of one of
the insurance policies, and Company, as same may be amended from time
to time."
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13. Schedule 10 to the Agreement and the Registration Rights
Agreement dated as of May 15, 1996 between Company and Executive (the
"Registration Rights Agreement") are amended (a) to replace the incorrect
reference to "Xxxx X. Xxxxxx" in Section 1.01(j) of the Registration Rights
Agreement with "Xxxxx X. Xxxxxxx" and (b) to provide in Section 2.04 of the
Registration Rights Agreement that notice to the Executive shall be addressed
and sent as follows:
"Xxxxx X. Xxxxxxx
0000 Xxxxx Xxxx
Xxxxxx, Xxxxxxx 00000,"
14. 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.
15. This Amendment shall be governed by and construed pursuant
to the laws of the State of Florida.
16. 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.
THE PARTIES hereto have caused this Agreement to be duly executed as
of the day and year first above written.
PRECISION RESPONSE CORPORATION
BY: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Chairman of the Board
/s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXXX
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