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Exhibit 10.3
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, dated and effective as of April 15, 1997, by and
between PRECISION RESPONSE CORPORATION, a corporation organized and existing
under the laws of the State of Florida (hereinafter referred to as "Employer"),
and XXXXXXX XXXXXXXX (hereinafter referred to as "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Employer is a Florida corporation engaged in the
teleservicing, database management and marketing and fulfillment
business;
WHEREAS, Employer desires to employ Employee upon the terms and
conditions set forth below and Employee desires to accept employment upon such
terms and conditions; and
WHEREAS, Employer and Employee desire to set forth in writing the terms
and conditions of their agreements and understandings with respect to Employee's
employment by Employer.
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT
Employer hereby employs Employee, and Employee hereby accepts
employment by Employer, upon the terms and conditions set forth in this
Employment Agreement.
2. TERM
Subject to the provisions for earlier termination set forth in
Section 9 hereof, this Employment Agreement shall commence on the date hereof
and shall continue until 5:00, p.m., April 14, 2000 (the "Employment Term").
3. EMPLOYEE'S REPRESENTATIONS AND WARRANTIES
Employee represents and warrants to Employer that Employee is free
to accept employment with Employer as contemplated herein and has no other
written or oral obligations or commitments of any kind or nature which would in
any way interfere with Employee's acceptance 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.
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4. DUTIES AND EXTENT OF SERVICES
A. DUTIES. Employee's duties and responsibilities hereunder shall be
those reasonably assigned to Employee from time to time by Employer, consistent
with the following: Employee shall, unless and until otherwise determined by
Employer, serve as Employer's Director of Account Services, and shall, subject
to the direction of Employer's Chief Operating Officer, have responsibility to
oversee and conduct the operations and activities of Employer's account services
group, which includes the handling of all activities relating to the affairs of
Employer's clients for which Employer is responsible, including teleservices,
information services and fulfillment services. Employee shall report directly to
Employer's President and Chief Operating Officer, or as otherwise directed from
time to time by Employer's President. Employee agrees to devote Employee's full
and exclusive time, skill, attention and energy diligently and competently to
perform the duties and responsibilities properly assigned to Employee hereunder,
or pursuant hereto.
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 similarly-situated employees generally, which are
all hereby incorporated by reference and made a part of this Employment
Agreement.
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 $200,000, per annum for each year of the Employment Term.
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 (the "Bonus Amount"). It is anticipated that in no event shall the
Bonus Amount exceed an amount equal to 40% of the aggregate Salary paid during
the year of employment to which the Bonus Amount relates, unless Employer, in
its sole and absolute discretion, determines that a greater Bonus Amount is
warranted. 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 Employee's performance during the entire calendar year
immediately preceding such March 31. Each Bonus Amount shall be subject to
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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 health, dental, life and disability insurance) as
are made available by Employer from time to time, in Employer's sole discretion,
to all other similarly-situated employees generally.
B. EXPENSES. Employer shall reimburse Employee for Employee's
reasonable out-of-pocket costs and expenses incurred in connection with the
performance of Employee's duties and responsibilities hereunder, subject to
Employee's presentation of appropriate documentation and, if requested,
justification therefor, and provided that the types and amounts of expenses
incurred are consistent with, in Employer's judgment, Employer's policies and
practices.
7. VACATIONS
Employee shall be entitled to four (4) weeks vacation each full year
of the Employment Term, with full compensation (and Employee shall 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 it reasonably
deems 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 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.
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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 thirty (30) days following
Employee's receipt of written notice thereof. Employee shall be deemed
"Disabled" for purposes of this Agreement (a) if, in the reasonable judgment of
Employer, Employee is unable, due to physical, mental or emotional illness or
injury, to perform substantially all of Employee's duties and responsibilities
for Employer for a continuous period of ninety (90) days, or (b) if Employee is
adjudicated as an incompetent or has a guardian appointed to handle Employee's
affairs.
C. EFFECT OF TERMINATION FOR CAUSE OR EMPLOYEE'S RESIGNATION. In the
event that Employee's employment under this Employment Agreement is terminated
by Employer with Cause, or because Employee resigns from or quits Employee's
employment, Employer shall pay to Employee, within thirty (30) days following
the date of such termination or resignation, subject to Employer's right to set
off any damages resulting from Employee's termination with Cause or resignation
effected without giving the required notice, 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 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, 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
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in this Employment Agreement or to which Employee might otherwise be entitled
hereunder or at law or in equity.
E. COMPENSATION UPON TERMINATION WITHOUT CAUSE. In the event that
Employer terminates Employee's employment under this Employment Agreement
without Cause, Employee's sole and exclusive compensation and remedy hereunder
shall be to receive from Employer, and Employer shall pay and provide, (i) the
amount of Salary, if any, accrued and unpaid through the date of termination,
and the amounts and items payable and to be provided under Section 6 through the
date of termination, payable within thirty (30) days following termination of
employment, and (ii) the Salary that Employee would have received during the
period following termination through the expiration of the period ending on the
first anniversary of the date of termination of Employee's employment (even if
beyond the expiration date of the Employment Term), as and when it would have
been payable or provided if Employee had remained an employee of Employer for
such period. Employee shall not be entitled to the foregoing severance to the
extent that Employee receives or is entitled to receive compensation from new
employment with respect to employment services rendered during such period.
F. 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 exams 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
software programs, marketing and sales techniques and/or programs, methods,
methodologies, manuals, lists and other trade secrets from time to
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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 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.
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 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 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, Employee covenants and agrees
that, 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 entity who is or was a client of
Employer at any time during Employee's employment with Employer and for or to
whom Employer is
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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, (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 or programmer or
information services employee of Employer or 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 (C) in any capacity engage in any
venture, enterprise, activity or business, passively or actively, as an owner,
consultant, adviser, participant, employee or agent, competitive with the
business of Employer anywhere within the continental United States. Employee
acknowledges that the business of Employer is national in scope, that one can
effectively compete with such business from anywhere in the continental United
States, and that, therefore, such geographical area of restriction is reasonable
in the circumstances to protect Employer's trade secrets and other legitimate
business interests.
12. 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.
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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 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).
14. LAW APPLICABLE
This Employment Agreement shall be governed by and construed
pursuant to the laws of the State of Florida.
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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 mailed to Employer, and to Employee's then current residence,
if mailed 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, provided
that, in the event of any such assignment, Employer shall remain liable for all
of its obligations hereunder.
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.
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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.
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 XXXXXXX
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Xxxxx Xxxxxxx, President
EMPLOYEE:
/s/ XXXXXXX XXXXXXXX
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XXXXXXX XXXXXXXX
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